Florida Senate - 2011 COMMITTEE AMENDMENT
Bill No. SB 648
Barcode 587788
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/22/2011 .
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The Committee on Banking and Insurance (Bennett) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Before line 36
4 insert:
5 Section 1. Section 90.5021, Florida Statutes, is created to
6 read:
7 90.5021 Fiduciary lawyer-client privilege.—
8 (1) For the purpose of this section, a client acts as a
9 fiduciary when serving as a personal representative or a trustee
10 as defined in ss. 731.201 and 736.0103, an administrator ad
11 litem as defined in s. 733.308, a curator as described in s.
12 733.501, a guardian or guardian ad litem as defined in s.
13 744.102, a conservator as defined in s. 710.102, or an attorney
14 in fact as described in chapter 709.
15 (2) A communication between a lawyer and a client acting as
16 a fiduciary is privileged and protected from disclosure under s.
17 90.502 to the same extent as if the client were not acting as a
18 fiduciary. In applying s. 90.502 to a communication under this
19 section, only the person or entity acting as a fiduciary is
20 considered a client of the lawyer.
21 (3) This section does not affect the exception to the
22 lawyer-client privilege which is provided for crime or fraud as
23 set forth in s. 90.502(4)(a).
24
25 Between lines 103 and 104
26 insert:
27 Section 7. Paragraph (b) of subsection (2) of section
28 733.212, Florida Statutes, is amended to read:
29 733.212 Notice of administration; filing of objections.—
30 (2) The notice shall state:
31 (b) The name and address of the personal representative and
32 the name and address of the personal representative’s attorney,
33 and that the fiduciary lawyer-client privilege in s. 90.5021
34 applies with respect to the personal representative and any
35 attorney employed by the personal representative.
36
37 Between lines 125 and 126
38 insert:
39 Section 9. Paragraphs (a) and (b) of subsection (1) of
40 section 736.0813, Florida Statutes, are amended to read:
41 736.0813 Duty to inform and account.—The trustee shall keep
42 the qualified beneficiaries of the trust reasonably informed of
43 the trust and its administration.
44 (1) The trustee’s duty to inform and account includes, but
45 is not limited to, the following:
46 (a) Within 60 days after acceptance of the trust, the
47 trustee shall give notice to the qualified beneficiaries of the
48 acceptance of the trust, and the full name and address of the
49 trustee, and that the fiduciary lawyer-client privilege in s.
50 90.5021 applies with respect to the trustee and any attorney
51 employed by the trustee.
52 (b) Within 60 days after the date the trustee acquires
53 knowledge of the creation of an irrevocable trust, or the date
54 the trustee acquires knowledge that a formerly revocable trust
55 has become irrevocable, whether by the death of the settlor or
56 otherwise, the trustee shall give notice to the qualified
57 beneficiaries of the trust’s existence, the identity of the
58 settlor or settlors, the right to request a copy of the trust
59 instrument, and the right to accountings under this section, and
60 that the fiduciary lawyer-client privilege in s. 90.5021 applies
61 with respect to the trustee and any attorney employed by the
62 trustee.
63
64 Paragraphs (a) and (b) do not apply to an irrevocable trust
65 created before the effective date of this code, or to a
66 revocable trust that becomes irrevocable before the effective
67 date of this code. Paragraph (a) does not apply to a trustee who
68 accepts a trusteeship before the effective date of this code.
69
70 ================= T I T L E A M E N D M E N T ================
71 And the title is amended as follows:
72 Delete lines 2 - 24
73 and insert:
74 An act relating to estates; creating s. 90.5021, F.S.;
75 creating a fiduciary lawyer-client privilege;
76 providing that the lawyer-client privilege applies to
77 the communications between a lawyer and a client that
78 is a fiduciary; providing that the act does not affect
79 the crime or fraud exception to the lawyer-client
80 privilege; amending s. 732.102, F.S.; revising
81 provisions relating to the intestate share of a
82 surviving spouse; creating s. 732.615, F.S.; providing
83 a right to reform the terms of a will to correct
84 mistakes; creating s. 732.616, F.S.; providing a right
85 to modify the terms of a will to achieve tax
86 objectives; creating s. 733.1061, F.S.; providing for
87 a court to award fees and costs in reformation and
88 modification proceedings either against a party’s
89 share in the estate or in the form of a personal
90 judgment against a party individually; amending s.
91 732.5165, F.S.; clarifying that a revocation of a will
92 is subject to challenge on the grounds of fraud,
93 duress, mistake, or undue influence; amending s.
94 732.518, F.S.; specifying that a challenge to the
95 revocation of a will may not be commenced before the
96 testator’s death; amending s. 733.212, F.S.; requiring
97 a notice of administration to state that the fiduciary
98 lawyer-client privilege applies with respect to the
99 personal representative and his or her attorney;
100 amending s. 736.0207, F.S.; clarifying when a
101 challenge to the revocation of a revocable trust may
102 be brought; amending s. 736.0406, F.S.; providing that
103 the creation of a trust amendment or trust restatement
104 and the revocation of a trust are subject to challenge
105 on the grounds of fraud, duress, mistake, or undue
106 influence; amending s. 736.0813, F.S.; providing that
107 the fiduciary lawyer-client privilege applies to
108 communications between a trustee and an attorney
109 employed by the trustee; amending s. 744.441,