2012 Florida Statutes
Substitution of fiduciaries.
Substitution of fiduciaries.
660.46 Substitution of fiduciaries.—
(1) The provisions of this section shall apply to the transfer of fiduciary accounts by substitution, and for those purposes these provisions shall constitute alternative procedures to those provided or required by any other provisions of law relating to the transfer of fiduciary accounts or the substitution of persons acting or who are to act in a fiduciary capacity. In this section, and only for its purposes, the term:
(a) “Limitation notice” has the meaning ascribed in s. 736.1008(4).
(b) “Original fiduciary” means any trust company or trust department which, at the time of the initiation of the proceedings provided for in this section, holds or has been named or otherwise designated to hold a fiduciary capacity, alone or with others, with respect to any fiduciary account and which proposes in the proceedings provided for in this section to terminate its fiduciary capacity with respect to such fiduciary account by the substitution of a proposed substitute fiduciary.
(c) “Proposed substitute fiduciary” means any trust company or trust department qualified under the laws of this state to act in the fiduciary capacity to which it is proposed in said proceedings to be substituted in the place and stead of the original fiduciary.
(d) “Trust accounting” has the meaning ascribed in s. 736.08135.
(e) “Trust disclosure document” has the meaning ascribed in s. 736.1008(4)(a).
(2) Any original fiduciary and any proposed substitute fiduciary may, with respect to any fiduciary account or accounts which they shall mutually select, initiate proceedings by joining in the filing of a petition in the circuit court, requesting the substitution of the proposed substitute fiduciary for the original fiduciary as to such fiduciary account or accounts. The petition may be filed in the county in which the main office of the original fiduciary is located and, except to the extent inconsistent with the provisions of this section, shall be governed by the Florida Rules of Civil Procedure; however, if any fiduciary account is then the subject of a proceeding in a court in this state pursuant to the Florida Probate Code, the Florida Guardianship Law, chapter 736, or chapter 747, the petition relating to such fiduciary account shall be filed in that proceeding and shall be governed by the procedural or other relevant rules applicable to such proceeding except to the extent inconsistent with the provisions of this section.
(3) Unless a waiver or consent shall be filed in the proceedings as provided in subsection (4), the provisions of s. 731.301(1) and (2) shall apply with respect to notice of the proceedings to all persons who are then cofiduciaries with the original fiduciary, other than a person joining as a petitioner in the proceedings; to all persons named in the governing instrument as substitutes or successors to the fiduciary capacity of the original fiduciary; to the persons then living who are entitled under the governing instrument to appoint a substitute or successor to act in the fiduciary capacity of the original fiduciary; to all vested beneficiaries of the fiduciary account; and to all then-living originators of the governing instrument. Unless a waiver or consent shall be filed in the proceedings as provided in subsection (4), the provisions of s. 731.301 shall apply with respect to notice to all contingent beneficiaries of the fiduciary account. Only the persons or classes of persons described in the foregoing provisions of this subsection shall be deemed to be interested persons for the purposes of this section and the proceedings and notices provided for in this section; and the provisions of ss. 731.301(3) and 731.303(3) and (4) and part III of chapter 736, relating to notice requirements, the effect of notice, and representation of interests, shall apply to the proceedings provided for in this section.
(4) Any interested person, including a guardian ad litem, administrator ad litem, guardian of the property, personal representative, trustee, or other fiduciary, may waive any right of notice and may consent to any action or proceeding which may be permitted by this section. Any such waiver or consent must be filed in the proceedings and may be filed at any time, and the notice requirements of this section shall not apply to any person who files any such waiver or consent.
(5) If no answer which constitutes an objection to the petition or the relief requested therein, or which otherwise requires a hearing, is served on the petitioners and filed with the court in which the proceeding is pending by any interested person or class of persons to whom notice has been given as provided in subsection (3), within 30 days from the service of such notice, the petition shall be considered ex parte as to such interested person or class of persons. If an answer which constitutes an objection to the petition or the relief requested therein, or which otherwise requires a hearing, is timely served and filed by any interested person or class of persons, a hearing shall be set and reasonable notice shall be given. The court, upon consideration of the petition and the interests of the interested persons, shall either grant or deny the relief requested by the petition; and, if the relief is granted, the court shall order the proposed substitute fiduciary to be substituted in the place and stead of the original fiduciary, in the fiduciary capacity theretofore held by the original fiduciary, effective on such date as shall be specified in the court order which shall not be more than 30 days from the date of the entry of such order unless a longer period, not exceeding 90 days from the date of the entry of such order, shall be requested by the petitioners. The date so specified may be referred to in this section as the effective date of the order for substitution. The court shall order the requested substitution unless it determines that such substitution would constitute or create a material detriment to the estate, trust, or other fiduciary account or to the interests of the beneficiaries thereof.
(6) All court costs and the fees of guardians ad litem arising in connection with any proceeding hereunder shall be paid by the petitioners and shall not be charged to any fiduciary account.
(7) On the effective date of the order for substitution, the original fiduciary shall transfer and deliver, to the trust company or trust department so substituted by the court order for substitution, each fiduciary account with respect to which the order for substitution is applicable, together with all documents and records pertaining thereto and all other information in the possession of the original fiduciary which may be necessary for the proper continuation of the fiduciary functions; and thereupon the trust company or trust department so substituted shall hold the fiduciary capacity previously held by the original fiduciary and shall have all the rights, powers, and duties theretofore held or exercisable by the original fiduciary by virtue of its former fiduciary capacity, but the trust company or trust department so substituted shall not exercise any right or power which, by the governing instrument, is expressly made personal to the original fiduciary. The proceedings in which the order for substitution was entered shall not be finally terminated until settlement of the final account of the original fiduciary pursuant to the provisions of subsection (8).
(8) Within 30 days after the effective date of an order for substitution entered hereunder, the original fiduciary shall file a final trust accounting with the court and shall send a copy thereof to each interested person who does not file a waiver or consent, together with a notice of the filing of the final trust accounting. The trust company or trust department substituted for the original fiduciary by the court order for substitution shall be deemed to be an interested party for the purposes of this subsection. Objections to a final trust accounting may be filed by any interested party who has not filed a waiver or consent, and, to be considered by the court, any such objections must be filed with the court and served on the original fiduciary within 60 days after a copy of the final trust accounting and notice of the filing of the final trust accounting have been sent to such interested person. Objections shall be tried and determined by the court upon the application of the original fiduciary or any interested person who has not filed a waiver or consent. Upon expiration of the time for filing objections if no objections have been timely filed, or at such earlier time as waivers or consents have been filed by all interested persons, or, if objections have been timely filed by an interested person entitled to do so, then upon the hearing on any such objections, the court shall enter an appropriate order on such final trust accounting and on all unapproved annual or other trust accounting previously filed. If consents to a final trust accounting are filed with the court by all interested persons to whom a copy of the final trust accounting is required hereunder to be sent, the court shall enter an order approving such trust accounting and all unapproved annual or other trust accounting previously filed.
(9) Unless previously or otherwise barred by adjudication, waiver, consent, limitation, or the provisions of subsection (8), an action for breach of trust or breach of fiduciary duties or responsibilities against an original fiduciary in whose place and stead another trust company or trust department has been substituted pursuant to the provisions of this section is barred for any beneficiary who has received a trust disclosure document adequately disclosing the matter unless a proceeding to assert the claim is commenced within 6 months after receipt of the trust disclosure document or the limitation notice that applies to the trust disclosure document, whichever is received later. In any event, and notwithstanding lack of adequate disclosure, all claims against such original fiduciary which has complied with the requirements of s. 736.1008 are barred as provided in chapter 95. Section 736.1008(4)(a) and (c) applies to this subsection.
(10) A beneficiary has received a final trust disclosure document or a limitation notice if, when the beneficiary is an adult, it is received by him or her or if, when the beneficiary is a minor or a disabled person, it is received by his or her representative as provided in part III of chapter 736.
(11) The filing of a petition hereunder or the substitution of fiduciaries pursuant to law shall not be deemed as the resignation by any trust company or trust department of any fiduciary capacity or relationship.
(12) This section applies to trust accountings for accounting periods beginning on or after January 1, 2003, and to written reports, other than trust accountings, received by a beneficiary on or after January 1, 2003.
History.—s. 1, ch. 76-37; s. 3, ch. 76-168; s. 1, ch. 77-174; s. 1, ch. 77-457; ss. 144, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 548, ch. 97-102; s. 192, ch. 2001-226; s. 1, ch. 2002-82; s. 24, ch. 2003-154; s. 19, ch. 2006-217.
Note.—Former s. 660.012.