Florida Senate - 2014                              CS for SB 998
       
       
        
       By the Committee on Judiciary; and Senator Hukill
       
       
       
       
       
       590-02447-14                                           2014998c1
    1                        A bill to be entitled                      
    2         An act relating to estates; amending s. 732.806, F.S.;
    3         providing that certain restrictions on gifts to
    4         lawyers and other disqualified persons apply to
    5         written instruments executed on or after a specified
    6         date; providing for applicability; amending s.
    7         733.107, F.S.; clarifying circumstances under which a
    8         burden of proof shifts in cases involving undue
    9         influence; providing for retroactive application;
   10         amending s. 733.808, F.S.; requiring that a directive
   11         to apply certain death benefits for the payment of
   12         claims and administration expenses be specified in
   13         certain instruments; providing for retroactive
   14         application; amending s. 736.0207, F.S.; establishing
   15         which party bears the burden of proof in an action to
   16         contest the validity or revocation of a trust;
   17         providing for applicability; amending s. 736.05053,
   18         F.S.; requiring a specific directive for certain
   19         assets and death benefits to be used to pay estate
   20         expenses; providing for retroactive application;
   21         amending s. 736.1106, F.S.; providing for the vesting
   22         of outright devises in certain trust documents;
   23         providing for applicability; providing an effective
   24         date.
   25          
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Subsection (9) is added to section 732.806,
   29  Florida Statutes, to read:
   30         732.806 Gifts to lawyers and other disqualified persons.—
   31         (9) This section applies only to written instruments
   32  executed on or after October 1, 2013.
   33         Section 2. The changes made by this act to s. 732.806,
   34  Florida Statutes, are intended to clarify existing law and are
   35  remedial in nature.
   36         Section 3. Section 733.107, Florida Statutes, is amended to
   37  read:
   38         733.107 Burden of proof in contests; presumption of undue
   39  influence.—
   40         (1) In all proceedings contesting the validity of a will,
   41  the burden shall be upon the proponent of the will to establish
   42  prima facie its formal execution and attestation. A self-proving
   43  affidavit executed in accordance with s. 732.503 or an oath of
   44  an attesting witness executed as required in s. 733.201(2) is
   45  admissible and establishes prima facie the formal execution and
   46  attestation of the will. Thereafter, the contestant shall have
   47  the burden of establishing the grounds on which the probate of
   48  the will is opposed or revocation is sought.
   49         (2) In any transaction or event to which the presumption of
   50  undue influence applies, the presumption of undue influence
   51  implements public policy against abuse of fiduciary or
   52  confidential relationships and is therefore a presumption
   53  shifting the burden of proof under ss. 90.301-90.304.
   54         Section 4. The changes made by this act to s. 733.107,
   55  Florida Statutes, are intended to clarify existing law, are
   56  remedial in nature, and shall apply retroactively to all
   57  proceedings pending on or before this act becomes a law and all
   58  cases commenced on or after the effective date.
   59         Section 5. Subsection (4) of section 733.808, Florida
   60  Statutes, is amended to read:
   61         733.808 Death benefits; disposition of proceeds.—
   62         (4) Unless the trust agreement, declaration of trust, or
   63  will expressly refers to this subsection and directs that it
   64  does not apply, death benefits payable as provided in subsection
   65  (1), subsection (2), or subsection (3), unless paid to a
   66  personal representative under the provisions of subsection (3),
   67  shall not be deemed to be part of the decedent’s estate, and
   68  shall not be subject to any obligation to pay the expenses of
   69  the administration and obligations of the decedent’s estate or
   70  for contribution required from a trust under s. 733.607(2) to
   71  any greater extent than if the proceeds were payable directly to
   72  the beneficiaries named in the trust.
   73         Section 6. The changes made by this act to s. 733.808,
   74  Florida Statutes, are intended to clarify existing law, are
   75  remedial in nature, and apply retroactively without regard to
   76  the date of the decedent’s death.
   77         Section 7. Section 736.0207, Florida Statutes, is amended
   78  to read:
   79         736.0207 Trust contests.—
   80         (1) In an action to contest the validity or revocation of
   81  all or part of a trust, the contestant has the burden of
   82  establishing the grounds for invalidity.
   83         (2) An action to contest the validity of all or part of a
   84  revocable trust, or the revocation of part of a revocable trust,
   85  may not be commenced until the trust becomes irrevocable by its
   86  terms or by the settlor’s death. If all of a revocable trust has
   87  been revoked, an action to contest the revocation may not be
   88  commenced until after the settlor’s death. This section does not
   89  prohibit such action by the guardian of the property of an
   90  incapacitated settlor.
   91         Section 8. The changes made by this act to s. 736.0207,
   92  Florida Statutes, apply to all cases commenced on or after the
   93  effective date.
   94         Section 9. Subsection (1) of section 736.05053, Florida
   95  Statutes, is amended to read:
   96         736.05053 Trustee’s duty to pay expenses and obligations of
   97  settlor’s estate.—
   98         (1) A trustee of a trust described in s. 733.707(3) shall
   99  pay to the personal representative of a settlor’s estate any
  100  amounts that the personal representative certifies in writing to
  101  the trustee are required to pay the expenses of the
  102  administration and obligations of the settlor’s estate. Payments
  103  made by a trustee, unless otherwise provided in the trust
  104  instrument, must be charged as expenses of the trust without a
  105  contribution from anyone. The interests of all beneficiaries of
  106  such a trust are subject to the provisions of this subsection;
  107  however, the payments must be made from assets, property, or the
  108  proceeds of the assets or property that are included in the
  109  settlor’s gross estate for federal estate tax purposes and may
  110  not be made from, other than assets proscribed in s. 733.707(3),
  111  or death benefits described in s. 733.808(4) unless the trust
  112  instrument expressly refers to s. 733.808(4) and directs that it
  113  does not apply that are included in the settlor’s gross estate
  114  for federal estate tax purposes.
  115         Section 10. The changes made by this act to s. 736.05053,
  116  Florida Statutes, are intended to clarify existing law, are
  117  remedial in nature, and apply retroactively without regard to
  118  the date of the settlor’s death.
  119         Section 11. Present subsection (5) of section 736.1106,
  120  Florida Statutes, is renumbered as subsection (6) and amended,
  121  and a new subsection (5) is added to that section, to read:
  122         736.1106 Antilapse; survivorship with respect to future
  123  interests under terms of inter vivos and testamentary trusts;
  124  substitute takers.—
  125         (5) Unless a contrary intent appears in the trust
  126  instrument, subsections (2)-(4) do not apply to an outright
  127  devise that vests upon the death of the settlor unless the
  128  beneficiary is a grandparent, or a lineal descendant of a
  129  grandparent, of the settlor or testator and the beneficiary:
  130         (a) Is dead at the time of the execution of the revocable
  131  trust or will;
  132         (b) Fails to survive the settlor or testator; or
  133         (c) Is required by the inter vivos trust or by operation of
  134  law to be treated as having predeceased the settlor or testator.
  135  
  136  A devise in a revocable trust or a testamentary trust that is to
  137  take effect at the death of the settlor or testator does not
  138  vest until the death of the settlor or testator.
  139         (6)(5) Subsections (1)-(4) apply to all trusts other than
  140  trusts that were irrevocable before the effective date of this
  141  code. Sections 732.603, 732.604, and 737.6035, as they exist on
  142  June 30, 2007, continue to apply to other trusts executed on or
  143  after June 12, 2003. Subsection (5) applies to those trusts that
  144  become irrevocable after June 30, 2014.
  145         Section 12. This act shall take effect upon becoming a law.