Florida Senate - 2017                             CS for SB 1554
       
       
        
       By the Committee on Judiciary; and Senator Young
       
       
       
       
       
       590-02715-17                                          20171554c1
    1                        A bill to be entitled                      
    2         An act relating to trusts; amending s. 736.0103, F.S.;
    3         redefining the term “interests of the beneficiaries”;
    4         amending s. 736.0105, F.S.; deleting a requirement
    5         that a trust be for the benefit of the trust’s
    6         beneficiaries; amending s. 736.0109, F.S.; revising
    7         provisions relating to notice or sending of electronic
    8         trust documents; providing requirements for such
    9         documents to be deemed sent; requiring a certain
   10         authorization to specify documents subject to
   11         electronic posting; revising requirements for a
   12         recipient to electronically access such documents;
   13         prohibiting the termination of a recipient’s
   14         electronic access to such documents from invalidating
   15         certain notice or sending of electronic trust
   16         documents; tolling specified limitations periods under
   17         certain circumstances; providing requirements for
   18         electronic access to such documents to be deemed
   19         terminated by a sender; providing applicability;
   20         amending s. 736.0110, F.S.; providing that the
   21         Attorney General has standing to assert certain rights
   22         in certain proceedings; amending s. 736.0404, F.S.;
   23         deleting a restriction on the purpose for which a
   24         trust is created; amending s. 736.04117, F.S.;
   25         defining and redefining terms; authorizing an
   26         authorized trustee to appoint all or part of the
   27         principal of a trust to a second trust under certain
   28         circumstances; providing requirements for the second
   29         trust and its beneficiaries; providing that the second
   30         trust may retain, omit, or create specified powers;
   31         authorizing the term of the second trust to extend
   32         beyond the term of the first trust; providing
   33         requirements for distributions to a second trust when
   34         the authorized trustee does not have absolute power;
   35         providing requirements for such second trust;
   36         providing requirements for grants of power by the
   37         second trust; authorizing a second trust created by an
   38         authorized trustee without absolute power to grant
   39         absolute power to the second trust’s trustee;
   40         authorizing an authorized trustee to appoint the
   41         principal of a first trust to a supplemental needs
   42         trust under certain circumstances; providing
   43         requirements for such supplemental needs trust;
   44         prohibiting an authorized trustee from distributing
   45         the principal of a trust in a manner that would reduce
   46         specified tax benefits; prohibiting the distribution
   47         of S corporation stock from a first trust to a second
   48         trust under certain circumstances; prohibiting a
   49         settlor from being treated as the owner of a second
   50         trust if he or she was not treated as the owner of the
   51         first trust; prohibiting an authorized trustee from
   52         distributing a trust’s interest in property to a
   53         second trust if it is subject to specified rules of
   54         the Internal Revenue Code; prohibiting the exercise of
   55         power to invade a trust’s principal to increase an
   56         authorized trustee’s compensation or relieve him or
   57         her from certain liability; specifying who an
   58         authorized trustee must notify when he or she
   59         exercises his or her power to invade the trust’s
   60         principal; specifying the documents that the
   61         authorized trustee must provide with such notice;
   62         amending s. 736.0708, F.S.; providing that a cotrustee
   63         is entitled to reasonable compensation when the trust
   64         does not specify compensation; providing that
   65         reasonable compensation may be greater for multiple
   66         trustees than for a single trustee; amending s.
   67         736.08135, F.S.; revising applicability; amending s.
   68         736.1008, F.S.; clarifying that certain knowledge by a
   69         beneficiary does not cause a claim for breach of trust
   70         or commence the running of a period of limitations or
   71         laches; providing intent; providing for retroactive
   72         application; amending s. 736.1201, F.S.; defining the
   73         term “delivery of notice”; conforming a provision to
   74         changes made by the act; amending s. 736.1205, F.S.;
   75         requiring an authorized trustee to provide certain
   76         notice to the Attorney General rather than the state
   77         attorney; amending ss. 736.1206, 736.1207, 736.1208,
   78         and 736.1209, F.S.; conforming provisions; providing
   79         effective dates.
   80          
   81  Be It Enacted by the Legislature of the State of Florida:
   82  
   83         Section 1. Subsection (11) of section 736.0103, Florida
   84  Statutes, is amended to read:
   85         736.0103 Definitions.—Unless the context otherwise
   86  requires, in this code:
   87         (11) “Interests of the beneficiaries” means the beneficial
   88  interests intended by the settlor as provided in the terms of a
   89  the trust.
   90         Section 2. Paragraph (c) of subsection (2) of section
   91  736.0105, Florida Statutes, is amended to read:
   92         736.0105 Default and mandatory rules.—
   93         (2) The terms of a trust prevail over any provision of this
   94  code except:
   95         (c) The requirement that a trust and its terms be for the
   96  benefit of the trust’s beneficiaries, and that the trust have a
   97  purpose that is lawful, not contrary to public policy, and
   98  possible to achieve.
   99         Section 3. Subsections (1) and (3) of section 736.0109,
  100  Florida Statutes, are amended to read:
  101         736.0109 Methods and waiver of notice.—
  102         (1) Notice to a person under this code or the sending of a
  103  document to a person under this code must be accomplished in a
  104  manner reasonably suitable under the circumstances and likely to
  105  result in receipt of the notice or document. Permissible methods
  106  of notice or for sending a document include first-class mail,
  107  personal delivery, delivery to the person’s last known place of
  108  residence or place of business, or a properly directed facsimile
  109  or other electronic message, or posting to a secure electronic
  110  account or website in accordance with subsection (3).
  111         (3) A document that is sent solely by posting to an
  112  electronic account or website is not deemed sent for purposes of
  113  this section unless the sender complies with this subsection.
  114  The sender has the burden of proving compliance with this
  115  subsection In addition to the methods listed in subsection (1)
  116  for sending a document, a sender may post a document to a secure
  117  electronic account or website where the document can be
  118  accessed.
  119         (a) Before a document may be posted to an electronic
  120  account or website, The recipient must sign a separate written
  121  authorization solely for the purpose of authorizing the sender
  122  to post documents on an electronic account or website before
  123  such posting. The written authorization must:
  124         1. Specifically indicate whether a trust accounting, trust
  125  disclosure document, or limitation notice, as those terms are
  126  defined in s. 736.1008(4), will be posted in this manner, and
  127  generally enumerate the other types of documents that may be
  128  posted in this manner.
  129         2. Contain specific instructions for accessing the
  130  electronic account or website, including the security procedures
  131  required to access the electronic account or website, such as a
  132  username and password.
  133         3. Advise the recipient that a separate notice will be sent
  134  when a document is posted to the electronic account or website
  135  and the manner in which the separate notice will be sent.
  136         4. Advise the recipient that the authorization to receive
  137  documents by electronic posting may be amended or revoked at any
  138  time and include specific instructions for revoking or amending
  139  the authorization, including the address designated for the
  140  purpose of receiving notice of the revocation or amendment.
  141         5. Advise the recipient that posting a document on the
  142  electronic account or website may commence a limitations period
  143  as short as 6 months even if the recipient never actually
  144  accesses the electronic account, electronic website, or the
  145  document.
  146         (b) Once the recipient signs the written authorization, the
  147  sender must provide a separate notice to the recipient when a
  148  document is posted to the electronic account or website. As used
  149  in this subsection, the term “separate notice” means a notice
  150  sent to the recipient by means other than electronic posting,
  151  which identifies each document posted to the electronic account
  152  or website and provides instructions for accessing the posted
  153  document. The separate notice requirement is deemed satisfied if
  154  the recipient accesses the document on the electronic account or
  155  website.
  156         (c) A document sent by electronic posting is deemed
  157  received by the recipient on the earlier of the date on which
  158  that the separate notice is received or the date on which that
  159  the recipient accesses the document on the electronic account or
  160  website.
  161         (d) At least annually after a recipient signs a written
  162  authorization, a sender shall send a notice advising recipients
  163  who have authorized one or more documents to be posted to an
  164  electronic account or website that such posting may commence a
  165  limitations period as short as 6 months even if the recipient
  166  never accesses the electronic account or website or the document
  167  and that authority to receive documents by electronic posting
  168  may be amended or revoked at any time. This notice must be given
  169  by means other than electronic posting and may not be
  170  accompanied by any other written communication. Failure to
  171  provide such notice within 380 days after the last notice is
  172  deemed to automatically revoke the authorization to receive
  173  documents in the manner permitted under this subsection 380 days
  174  after the last notice is sent.
  175         (e) The notice required in paragraph (d) may be in
  176  substantially the following form: “You have authorized the
  177  receipt of documents through posting to an electronic account or
  178  website on which where the documents can be accessed. This
  179  notice is being sent to advise you that a limitations period,
  180  which may be as short as 6 months, may be running as to matters
  181  disclosed in a trust accounting or other written report of a
  182  trustee posted to the electronic account or website even if you
  183  never actually access the electronic account or website or the
  184  documents. You may amend or revoke the authorization to receive
  185  documents by electronic posting at any time. If you have any
  186  questions, please consult your attorney.”
  187         (f) A sender may rely on the recipient’s authorization
  188  until the recipient amends or revokes the authorization by
  189  sending a notice to the address designated for that purpose in
  190  the authorization or in the manner specified on the electronic
  191  account or website. The recipient, at any time, may amend or
  192  revoke an authorization to have documents posted on the
  193  electronic account or website.
  194         (g) If a document is provided to a recipient solely through
  195  electronic posting and is deemed sent for purposes of this
  196  section:
  197         1. The recipient must be able to access and print or
  198  download the document until the earlier of:
  199         a. The date on which the recipient’s access to the
  200  electronic account or website is terminated for any reason; or
  201         b. Four must remain accessible to the recipient on the
  202  electronic account or website for at least 4 years after the
  203  date on which that the document is deemed received by the
  204  recipient.
  205         2. If the recipient’s access to the electronic account or
  206  website is terminated for any reason, such termination does not
  207  invalidate the notice or sending of any document previously
  208  posted on the electronic account or website in accordance with
  209  this subsection The electronic account or website must allow the
  210  recipient to download or print the document. This subsection
  211  does not affect or alter the duties of a trustee to keep clear,
  212  distinct, and accurate records pursuant to s. 736.0810 or affect
  213  or alter the time periods for which the trustee must maintain
  214  those records.
  215         3. If the recipient’s access to the electronic account or
  216  website is terminated by the sender before the time period set
  217  forth in sub-subparagraph 1.b., any applicable limitations
  218  period set forth in s. 736.1008(1) or (2) which is still open is
  219  tolled for any information adequately disclosed in such document
  220  as follows:
  221         a. From the date on which the recipient’s access to the
  222  electronic account or website is terminated by the sender until
  223  45 days after the date on which the sender provides notification
  224  of such termination to the recipient by means other than
  225  electronic posting, and:
  226         (I) The recipient may request that any documents sent
  227  during the prior 4 years solely through electronic posting be
  228  provided to him or her by other means at no cost; or
  229         (II) The recipient’s access to the electronic account or
  230  website is restored; and
  231         b. From the date on which any request is made pursuant to
  232  sub-sub-subparagraph 3.a.(I) until 20 days after the date on
  233  which the requested documents are provided to the recipient by
  234  means other than electronic posting.
  235         (h) For purposes of this subsection, access to an
  236  electronic account or website is terminated by the sender when
  237  the sender unilaterally terminates the recipient’s ability to
  238  access the electronic website or account or download or print
  239  any document posted on such website or account. Access is not
  240  terminated by the sender when access is terminated by an action
  241  of the recipient or by an action of the sender in response to
  242  the recipient’s request to terminate access. The recipient’s
  243  revocation of authorization pursuant to paragraph (f) is not
  244  considered a request to terminate access To be effective, the
  245  posting of a document to an electronic account or website must
  246  be done in accordance with this subsection. The sender has the
  247  burden of establishing compliance with this subsection.
  248         (i) This subsection does not affect or alter the duties of
  249  a trustee to keep clear, distinct, and accurate records pursuant
  250  to s. 736.0810 or affect or alter the time periods for which the
  251  trustee must maintain such records preclude the sending of a
  252  document by other means.
  253         (j) This subsection governs the posting of a document
  254  solely for the purpose of giving notice under this code or the
  255  sending of a document to a person under this code and does not
  256  prohibit or otherwise apply to the posting of a document to an
  257  electronic account or website for any other purpose or preclude
  258  the sending of a document by any other means.
  259         Section 4. Subsection (3) of section 736.0110, Florida
  260  Statutes, is amended to read:
  261         736.0110 Others treated as qualified beneficiaries.—
  262         (3) The Attorney General may assert the rights of a
  263  qualified beneficiary with respect to a charitable trust having
  264  its principal place of administration in this state. The
  265  Attorney General has standing to assert such rights in any
  266  judicial proceedings.
  267         Section 5. Section 736.0404, Florida Statutes, is amended
  268  to read:
  269         736.0404 Trust purposes.—A trust may be created only to the
  270  extent the purposes of the trust are lawful, not contrary to
  271  public policy, and possible to achieve. A trust and its terms
  272  must be for the benefit of its beneficiaries.
  273         Section 6. Effective upon becoming a law, section
  274  736.04117, Florida Statutes, is amended to read:
  275         736.04117 Trustee’s power to invade principal in trust.—
  276         (1) DEFINITIONS.—As used in this section, the term:
  277         (a) “Absolute power” means Unless the trust instrument
  278  expressly provides otherwise, a trustee who has absolute power
  279  under the terms of a trust to invade the principal of the trust,
  280  referred to in this section as the “first trust,” to make
  281  distributions to or for the benefit of one or more persons may
  282  instead exercise the power by appointing all or part of the
  283  principal of the trust subject to the power in favor of a
  284  trustee of another trust, referred to in this section as the
  285  “second trust,” for the current benefit of one or more of such
  286  persons under the same trust instrument or under a different
  287  trust instrument; provided:
  288         1. The beneficiaries of the second trust may include only
  289  beneficiaries of the first trust;
  290         2. The second trust may not reduce any fixed income,
  291  annuity, or unitrust interest in the assets of the first trust;
  292  and
  293         3. If any contribution to the first trust qualified for a
  294  marital or charitable deduction for federal income, gift, or
  295  estate tax purposes under the Internal Revenue Code of 1986, as
  296  amended, the second trust shall not contain any provision which,
  297  if included in the first trust, would have prevented the first
  298  trust from qualifying for such a deduction or would have reduced
  299  the amount of such deduction.
  300         (b) For purposes of this subsection, an absolute power to
  301  invade principal shall include a power to invade principal that
  302  is not limited to specific or ascertainable purposes, such as
  303  health, education, maintenance, and support, regardless of
  304  whether or not the term “absolute” is used. A power to invade
  305  principal for purposes such as best interests, welfare, comfort,
  306  or happiness constitutes shall constitute an absolute power not
  307  limited to specific or ascertainable purposes.
  308         (b)“Authorized trustee” means a trustee, other than the
  309  settlor or a beneficiary, who has the power to invade the
  310  principal of a trust.
  311         (c)“Beneficiary with a disability” means a beneficiary of
  312  the first trust who the authorized trustee believes may qualify
  313  for governmental benefits based on disability, regardless of
  314  whether the beneficiary currently receives those benefits or has
  315  been adjudicated incapacitated.
  316         (d)“Current beneficiary” means a beneficiary who, on the
  317  date his or her qualification is determined, is a distributee or
  318  permissible distributee of trust income or principal. The term
  319  includes the holder of a presently exercisable general power of
  320  appointment but does not include a person who is a beneficiary
  321  only because he or she holds another power of appointment.
  322         (e)“Governmental benefits” means financial aid or services
  323  from any state, federal, or other public agency.
  324         (f)“Internal Revenue Code” means the Internal Revenue Code
  325  of 1986, as amended.
  326         (g)“Power of appointment” has the same meaning as provided
  327  in s. 731.201(30).
  328         (h)“Presently exercisable general power of appointment”
  329  means a power of appointment exercisable by the powerholder at
  330  the relevant time. The term:
  331         1. Includes a power of appointment that is exercisable only
  332  after the occurrence of a specified event or that is subject to
  333  a specified restriction, but only after the event has occurred
  334  or the restriction has been satisfied.
  335         2.Does not include a power exercisable only upon the
  336  powerholder’s death.
  337         (i)“Substantially similar” means that there is no material
  338  change in a beneficiary’s beneficial interests or in the power
  339  to make distributions and that the power to make a distribution
  340  under a second trust for the benefit of a beneficiary who is an
  341  individual is substantially similar to the power under the first
  342  trust to make a distribution directly to the beneficiary. A
  343  distribution is deemed to be for the benefit of a beneficiary
  344  if:
  345         1. The distribution is applied for the benefit of a
  346  beneficiary;
  347         2. The beneficiary is under a legal disability or the
  348  trustee reasonably believes the beneficiary is incapacitated,
  349  and the distribution is made as permitted under this code; or
  350         3. The distribution is made as permitted under the terms of
  351  the first trust instrument and the second trust instrument for
  352  the benefit of the beneficiary.
  353         (j) “Supplemental needs trust” means a trust that the
  354  authorized trustee believes would not be considered a resource
  355  for purposes of determining whether the beneficiary who has a
  356  disability is eligible for governmental benefits.
  357         (k)“Vested interest” means a current unconditional right
  358  to receive a mandatory distribution of income, a specified
  359  dollar amount, or a percentage of value of a trust, or a current
  360  unconditional right to withdraw income, a specified dollar
  361  amount, or a percentage of value of a trust, which right is not
  362  subject to the occurrence of a specified event, the passage of a
  363  specified time, or the exercise of discretion.
  364         1.The term includes a presently exercisable general power
  365  of appointment.
  366         2. The term does not include a beneficiary’s interest in a
  367  trust if the trustee has discretion to make a distribution of
  368  trust property to a person other than such beneficiary.
  369         (2) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN
  370  AUTHORIZED TRUSTEE HAS ABSOLUTE POWER TO INVADE.—
  371         (a) Unless a trust instrument expressly provides otherwise,
  372  an authorized trustee who has absolute power under the terms of
  373  the trust to invade its principal, referred to in this section
  374  as the “first trust,” to make current distributions to or for
  375  the benefit of one or more beneficiaries may instead exercise
  376  such power by appointing all or part of the principal of the
  377  trust subject to such power in favor of a trustee of one or more
  378  other trusts, whether created under the same trust instrument as
  379  the first trust or a different trust instrument, including a
  380  trust instrument created for the purposes of exercising the
  381  power granted by this section, each referred to in this section
  382  as the “second trust,” for the current benefit of one or more of
  383  such beneficiaries only if:
  384         1.The beneficiaries of the second trust include only
  385  beneficiaries of the first trust; and
  386         2.The second trust does not reduce any vested interest.
  387         (b) In an exercise of absolute power, the second trust may:
  388         1.Retain a power of appointment granted in the first
  389  trust;
  390         2.Omit a power of appointment granted in the first trust,
  391  other than a presently exercisable general power of appointment;
  392         3.Create or modify a power of appointment if the
  393  powerholder is a current beneficiary of the first trust;
  394         4.Create or modify a power of appointment if the
  395  powerholder is a beneficiary of the first trust who is not a
  396  current beneficiary, but the exercise of the power of
  397  appointment may take effect only after the powerholder becomes,
  398  or would have become if then living, a current beneficiary of
  399  the first trust; and
  400         5.Extend the term of the second trust beyond the term of
  401  the first trust.
  402         (c) The class of permissible appointees in favor of which a
  403  created or modified power of appointment may be exercised may
  404  differ from the class identified in the first trust.
  405         (3)DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN
  406  AUTHORIZED TRUSTEE DOES NOT HAVE ABSOLUTE POWER TO INVADE.
  407  Unless the trust instrument expressly provides otherwise, an
  408  authorized trustee who has a power, other than an absolute
  409  power, under the terms of a first trust to invade principal to
  410  make current distributions to or for the benefit of one or more
  411  beneficiaries may instead exercise such power by appointing all
  412  or part of the principal of the first trust subject to such
  413  power in favor of a trustee of one or more second trusts. If the
  414  authorized trustee exercises such power:
  415         (a)The second trusts, in the aggregate, shall grant each
  416  beneficiary of the first trust beneficial interests in the
  417  second trusts which are substantially similar to the beneficial
  418  interests of the beneficiary in the first trust.
  419         (b)If the first trust grants a power of appointment to a
  420  beneficiary of the first trust, the second trust shall grant
  421  such power of appointment in the second trust to such
  422  beneficiary, and the class of permissible appointees shall be
  423  the same as in the first trust.
  424         (c)If the first trust does not grant a power of
  425  appointment to a beneficiary of the first trust, then the second
  426  trust may not grant a power of appointment in the second trust
  427  to such beneficiary.
  428         (d)Notwithstanding paragraphs (a), (b), and (c), the term
  429  of the second trust may extend beyond the term of the first
  430  trust, and, for any period after the first trust would have
  431  otherwise terminated, in whole or in part, under the provisions
  432  of the first trust, the trust instrument of the second trust
  433  may, with respect to property subject to such extended term:
  434         1.Include language providing the trustee with the absolute
  435  power to invade the principal of the second trust during such
  436  extended term; and
  437         2.Create a power of appointment, if the powerholder is a
  438  current beneficiary of the first trust, or expand the class of
  439  permissible appointees in favor of which a power of appointment
  440  may be exercised.
  441         (4)DISTRIBUTION FROM FIRST TRUST TO SUPPLEMENTAL NEEDS
  442  TRUST.—
  443         (a)Notwithstanding subsections (2) and (3), unless the
  444  trust instrument expressly provides otherwise, an authorized
  445  trustee who has the power under the terms of a first trust to
  446  invade the principal of the first trust to make current
  447  distributions to or for the benefit of a beneficiary with a
  448  disability may instead exercise such power by appointing all or
  449  part of the principal of the first trust in favor of a trustee
  450  of a second trust that is a supplemental needs trust if:
  451         1.The supplemental needs trust benefits the beneficiary
  452  with a disability;
  453         2.The beneficiaries of the second trust include only
  454  beneficiaries of the first trust; and
  455         3.The authorized trustee determines that the exercise of
  456  such power will further the purposes of the first trust.
  457         (b)Except as affected by any change to the interests of
  458  the beneficiary with a disability, the second trusts, in the
  459  aggregate, shall grant each other beneficiary of the first trust
  460  beneficial interests in the second trusts which are
  461  substantially similar to such beneficiary’s beneficial interests
  462  in the first trust.
  463         (5)PROHIBITED DISTRIBUTIONS.—
  464         (a)An authorized trustee may not distribute the principal
  465  of a trust under this section in a manner that would prevent a
  466  contribution to that trust from qualifying for, or that would
  467  reduce the exclusion, deduction, or other federal tax benefit
  468  that was originally claimed or could have been claimed for, that
  469  contribution, including:
  470         1. The exclusions under s. 2503(b) or s. 2503(c) of the
  471  Internal Revenue Code;
  472         2. A marital deduction under s. 2056, s. 2056A, or s. 2523
  473  of the Internal Revenue Code;
  474         3. A charitable deduction under s. 170(a), s. 642(c), s.
  475  2055(a), or s. 2522(a) of the Internal Revenue Code;
  476         4. Direct skip treatment under s. 2642(c) of the Internal
  477  Revenue Code; or
  478         5. Any other tax benefit for income, gift, estate, or
  479  generation-skipping transfer tax purposes under the Internal
  480  Revenue Code.
  481         (b)If S corporation stock is held in the first trust, an
  482  authorized trustee may not distribute all or part of that stock
  483  to a second trust that is not a permitted shareholder under s.
  484  1361(c)(2) of the Internal Revenue Code. If the first trust
  485  holds stock in an S corporation and is, or but for provisions of
  486  paragraphs (a), (c), and (d) would be, a qualified subchapter S
  487  trust within the meaning of s. 1361(d) of the Internal Revenue
  488  Code, the second trust instrument may not include or omit a term
  489  that prevents it from qualifying as a qualified subchapter S
  490  trust.
  491         (c)Except as provided in paragraphs (a), (b), and (d), an
  492  authorized trustee may distribute the principal of a first trust
  493  to a second trust regardless of whether the settlor is treated
  494  as the owner of either trust under ss. 671-679 of the Internal
  495  Revenue Code; however, if the settlor is not treated as the
  496  owner of the first trust, he or she may not be treated as the
  497  owner of the second trust unless he or she at all times has the
  498  power to cause the second trust to cease being treated as if it
  499  were owned by the settlor.
  500         (d)If an interest in property which is subject to the
  501  minimum distribution rules of s. 401(a)(9) of the Internal
  502  Revenue Code is held in trust, an authorized trustee may not
  503  distribute such an interest to a second trust under subsection
  504  (2), subsection (3), or subsection (4) if the distribution would
  505  shorten the otherwise applicable maximum distribution period.
  506         (6)EXERCISE BY WRITING.The exercise of a power to invade
  507  principal under subsection (2), subsection (3), or subsection
  508  (4) must The exercise of a power to invade principal under
  509  subsection (1) shall be by a written an instrument in writing,
  510  signed and acknowledged by the authorized trustee, and filed
  511  with the records of the first trust.
  512         (7)(3)RESTRICTIONS ON EXERCISE OF POWER.—The exercise of a
  513  power to invade principal under subsection (2), subsection (3),
  514  or subsection (4):
  515         (a)Is (1) shall be considered the exercise of a power of
  516  appointment, excluding other than a power to appoint to the
  517  authorized trustee, the authorized trustee’s creditors, the
  518  authorized trustee’s estate, or the creditors of the authorized
  519  trustee’s estate.
  520         (b)Is, and Shall be subject to the provisions of s.
  521  689.225 covering the time at which the permissible period of the
  522  rule against perpetuities begins and the law that determines the
  523  permissible period of the rule against perpetuities of the first
  524  trust.
  525         (c) May be to a second trust created or administered under
  526  the law of any jurisdiction.
  527         (d) May not:
  528         1. Increase the authorized trustee’s compensation beyond
  529  the compensation specified in the first trust instrument; or
  530         2. Relieve the authorized trustee from liability for breach
  531  of trust or provide for indemnification of the authorized
  532  trustee for any liability or claim to a greater extent than the
  533  first trust instrument; however, the exercise of the power may
  534  divide and reallocate fiduciary powers among fiduciaries and
  535  relieve a fiduciary from liability for an act or failure to act
  536  of another fiduciary as otherwise allowed under law or common
  537  law.
  538         (8) NOTICE.—
  539         (a)(4) The authorized trustee shall provide written
  540  notification of the manner in which he or she intends to
  541  exercise his or her power to invade principal to notify all
  542  qualified beneficiaries of the following parties first trust, in
  543  writing, at least 60 days before prior to the effective date of
  544  the authorized trustee’s exercise of such power the trustee’s
  545  power to invade principal pursuant to subsection (2), subsection
  546  (3), or subsection (4): (1), of the manner in which the trustee
  547  intends to exercise the power.
  548         1. All qualified beneficiaries of the first trust;
  549         2.If paragraph (5)(c) applies, the settlor of the first
  550  trust;
  551         3.All trustees of the first trust; and
  552         4.Any person who has the power to remove or replace the
  553  authorized trustee of the first trust.
  554         (b)The authorized A copy of the proposed instrument
  555  exercising the power shall satisfy the trustee’s notice
  556  obligation to provide notice under this subsection is satisfied
  557  when he or she provides copies of the proposed instrument
  558  exercising the power, the trust instrument of the first trust,
  559  and the proposed trust instrument of the second trust.
  560         (c) If all of those required to be notified qualified
  561  beneficiaries waive the notice period by signed written
  562  instrument delivered to the authorized trustee, the authorized
  563  trustee’s power to invade principal shall be exercisable
  564  immediately.
  565         (d) The authorized trustee’s notice under this subsection
  566  does shall not limit the right of any beneficiary to object to
  567  the exercise of the authorized trustee’s power to invade
  568  principal except as otherwise provided in other applicable
  569  provisions of this code.
  570         (9)(5)INAPPLICABILITY OF SPENDTHRIFT CLAUSE OR OTHER
  571  PROHIBITION.—The exercise of the power to invade principal under
  572  subsection (2), subsection (3), or subsection (4) (1) is not
  573  prohibited by a spendthrift clause or by a provision in the
  574  trust instrument that prohibits amendment or revocation of the
  575  trust.
  576         (10)(6)NO DUTY TO EXERCISE.—Nothing in this section is
  577  intended to create or imply a duty to exercise a power to invade
  578  principal, and no inference of impropriety may shall be made as
  579  a result of an authorized trustee’s failure to exercise a
  580  trustee not exercising the power to invade principal conferred
  581  under subsections (2), (3), and (4) subsection (1).
  582         (11)(7)NO ABRIDGEMENT OF COMMON LAW RIGHTS.—The provisions
  583  of This section may shall not be construed to abridge the right
  584  of any trustee who has a power of invasion to appoint property
  585  in further trust that arises under the terms of the first trust
  586  or under any other section of this code or under another
  587  provision of law or under common law.
  588         Section 7. Subsection (1) of section 736.0708, Florida
  589  Statutes, is amended to read:
  590         736.0708 Compensation of trustee.—
  591         (1) If the terms of a trust do not specify a the trustee’s
  592  compensation, the a trustee, including each cotrustee, is
  593  entitled to compensation that is reasonable under the
  594  circumstances. In the aggregate, the reasonable compensation for
  595  multiple trustees may be greater than for a single trustee.
  596         Section 8. Subsection (3) of section 736.08135, Florida
  597  Statutes, is amended to read:
  598         736.08135 Trust accountings.—
  599         (3) Subsections (1) and (2) govern the form and content of
  600  This section applies to all trust accountings rendered for any
  601  accounting periods beginning on or after January 1, 2003, and
  602  all trust accountings rendered on or after July 1, 2017. This
  603  subsection does not affect the beginning period from which a
  604  trustee is required to render a trust accounting.
  605         Section 9. Subsection (3) of section 736.1008, Florida
  606  Statutes, is amended to read:
  607         736.1008 Limitations on proceedings against trustees.—
  608         (3) When a trustee has not issued a final trust accounting
  609  or has not given written notice to the beneficiary of the
  610  availability of the trust records for examination and that
  611  claims with respect to matters not adequately disclosed may be
  612  barred, a claim against the trustee for breach of trust based on
  613  a matter not adequately disclosed in a trust disclosure document
  614  is barred as provided in chapter 95 and accrues when the
  615  beneficiary has actual knowledge of:
  616         (a) The facts upon which the claim is based, if such actual
  617  knowledge is established by clear and convincing evidence; or
  618         (b) The trustee’s repudiation of the trust or adverse
  619  possession of trust assets.
  620  
  621  Paragraph (a) applies to claims based upon acts or omissions
  622  occurring on or after July 1, 2008. A beneficiary’s actual
  623  knowledge that he or she has not received a trust accounting
  624  does not cause a claim to accrue against the trustee for breach
  625  of trust based upon the failure to provide a trust accounting
  626  required by s. 736.0813 or former s. 737.303 and does not
  627  commence the running of any period of limitations or laches for
  628  such a claim, and paragraph (a) and chapter 95 do not bar any
  629  such claim.
  630         Section 10. The changes to ss. 736.08135 and 736.1008,
  631  Florida Statutes, made by this act are intended to clarify
  632  existing law, are remedial in nature, and apply retroactively to
  633  all cases pending or commenced on or after July 1, 2017.
  634         Section 11. Present subsections (2), (3), and (4) of
  635  section 736.1201, Florida Statutes, are redesignated as
  636  subsections (3), (4), and (5), respectively, present subsection
  637  (5) of that section is amended, and a new subsection (2) is
  638  added to that section, to read:
  639         736.1201 Definitions.—As used in this part:
  640         (2) “Delivery of notice” means delivery of a written notice
  641  required under this part using any commercial delivery service
  642  requiring a signed receipt or by any form of mail requiring a
  643  signed receipt.
  644         (5) “State attorney” means the state attorney for the
  645  judicial circuit of the principal place of administration of the
  646  trust pursuant to s. 736.0108.
  647         Section 12. Section 736.1205, Florida Statutes, is amended
  648  to read:
  649         736.1205 Notice that this part does not apply.—In the case
  650  of a power to make distributions, if the trustee determines that
  651  the governing instrument contains provisions that are more
  652  restrictive than s. 736.1204(2), or if the trust contains other
  653  powers, inconsistent with the provisions of s. 736.1204(3) that
  654  specifically direct acts by the trustee, the trustee shall
  655  notify the state Attorney General by delivery of notice when the
  656  trust becomes subject to this part. Section 736.1204 does not
  657  apply to any trust for which notice has been given pursuant to
  658  this section unless the trust is amended to comply with the
  659  terms of this part.
  660         Section 13. Subsection (2) of section 736.1206, Florida
  661  Statutes, is amended to read:
  662         736.1206 Power to amend trust instrument.—
  663         (2) In the case of a charitable trust that is not subject
  664  to the provisions of subsection (1), the trustee may amend the
  665  governing instrument to comply with the provisions of s.
  666  736.1204(2) after delivery of notice to, and with the consent
  667  of, the state Attorney General.
  668         Section 14. Section 736.1207, Florida Statutes, is amended
  669  to read:
  670         736.1207 Power of court to permit deviation.—This part does
  671  not affect the power of a court to relieve a trustee from any
  672  restrictions on the powers and duties that are placed on the
  673  trustee by the governing instrument or applicable law for cause
  674  shown and on complaint of the trustee, the state Attorney
  675  General, or an affected beneficiary and notice to the affected
  676  parties.
  677         Section 15. Paragraph (b) of subsection (4) of section
  678  736.1208, Florida Statutes, is amended to read:
  679         736.1208 Release; property and persons affected; manner of
  680  effecting.—
  681         (4) Delivery of a release shall be accomplished as follows:
  682         (b) If the release is accomplished by reducing the class of
  683  permissible charitable organizations, by delivery of notice a
  684  copy of the release to the state Attorney General, including a
  685  copy of the release.
  686         Section 16. Section 736.1209, Florida Statutes, is amended
  687  to read:
  688         736.1209 Election to come under this part.—With the consent
  689  of that organization or organizations, a trustee of a trust for
  690  the benefit of a public charitable organization or organizations
  691  may come under s. 736.1208(5) by delivery of notice to filing
  692  with the state Attorney General of the an election, accompanied
  693  by the proof of required consent. Thereafter the trust shall be
  694  subject to s. 736.1208(5).
  695         Section 17. Except as otherwise provided in this act and
  696  except for this section, which shall take effect upon becoming a
  697  law, this act shall take effect July 1, 2017.