Senate Bill sb1166c2

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    Florida Senate - 2002                    CS for CS for SB 1166

    By the Committees on Banking and Insurance; Judiciary; and
    Senator Posey




    311-2064-02

  1                      A bill to be entitled

  2         An act relating to the Florida Uniform

  3         Principal and Income Act; creating ss. 738.101,

  4         738.102, 738.103, 738.104, 738.1041, 738.105,

  5         738.201, 738.202, 738.301, 738.302, 738.303,

  6         738.401, 738.402, 738.403, 738.501, 738.502,

  7         738.503, 738.504, 738.601, 738.602, 738.603,

  8         738.604, 738.605, 738.606, 738.607, 738.608,

  9         738.701, 738.702, 738.703, 738.704, 738.705,

10         738.706, 738.801, 738.802, 738.803, 738.804,

11         F.S.; providing a short title; providing

12         definitions; specifying a fiduciary's duties;

13         providing general principles; providing a

14         trustee's power to adjust between principal and

15         income; providing for a unitrust alternative to

16         certain trusts where the power to adjust is

17         unavailable or not exercised; providing

18         requirements, criteria, and procedures;

19         providing for judicial control of certain

20         discretionary powers; providing limitations;

21         providing for determinations and distributions

22         of net income; providing requirements;

23         providing for distributions to residuary and

24         remainder beneficiaries; providing for

25         apportionment at beginning and end of an income

26         interest; providing for entitlement to a right

27         to income; providing for apportionment of

28         receipts and disbursements under certain

29         circumstances; providing for allocation of

30         trust receipts during administration;

31         specifying character of receipts; providing for

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  1         distributions from trust or estate; providing

  2         for separate accounting by trustee of certain

  3         businesses or activities; providing for

  4         allocation of certain receipts not normally

  5         apportioned; providing for allocation of

  6         certain normally apportioned receipts;

  7         providing for allocation of disbursements from

  8         income and principal during administration of a

  9         trust; providing for certain transfers from

10         income under certain circumstances; providing

11         for payment of certain taxes; providing for

12         adjustments between principal and income due to

13         taxes; providing for uniform application and

14         construction; providing severability; providing

15         for application with respect to apportionment

16         of expenses and improvements; providing for

17         application; repealing ss. 738.01, 738.02,

18         738.03, 738.04, 738.05, 738.06, 738.07, 738.08,

19         738.09, 738.10, 738.11, 738.12, 738.13, 738.14,

20         738.15, F.S., relating to principal and income

21         of trusts; providing an effective date.

22

23  Be It Enacted by the Legislature of the State of Florida:

24

25         Section 1.  Sections 738.101, 738.102, 738.103,

26  738.104, 738.1041, 738.105, 738.201, 738.202, 738.301,

27  738.302, 738.303, 738.401, 738.402, 738.403, 738.501, 738.502,

28  738.503, 738.504, 738.601, 738.602, 738.603, 738.604, 738.605,

29  738.606, 738.607, 738.608, 738.701, 738.702, 738.703, 738.704,

30  738.705, 738.706, 738.801, 738.802, 738.803, and 738.804,

31  Florida Statutes, are created to read:

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  1         738.101  Short Title.--This chapter may be cited as the

  2  "Florida Uniform Principal and Income Act."

  3         738.102  Definitions.--As used in this chapter, the

  4  term:

  5         (1)  "Accounting period" means a calendar year unless

  6  another 12-month period is selected by a fiduciary.  The term

  7  includes a portion of a calendar year or other 12-month period

  8  that begins when an income interest begins or ends when an

  9  income interest ends.

10         (2)  "Beneficiary" means, in the case of a decedent's

11  estate, an heir or devisee and, in the case of a trust, an

12  income beneficiary or a remainder beneficiary.

13         (3)  "Fiduciary" means a personal representative or a

14  trustee.  The term includes an executor, administrator,

15  successor personal representative, special administrator, or a

16  person performing substantially the same function.

17         (4)  "Income" means money or property that a fiduciary

18  receives as current return from a principal asset.  The term

19  includes a portion of receipts from a sale, exchange, or

20  liquidation of a principal asset, to the extent provided in

21  ss. 738.401-738.403 and s. 738.503.

22         (5)  "Income beneficiary" means a person to whom net

23  income of a trust is or may be payable.

24         (6)  "Income interest" means the right of an income

25  beneficiary to receive all or part of net income, whether the

26  terms of the trust require the net income to be distributed or

27  authorize the net income to be distributed in the trustee's

28  discretion.

29         (7)  "Mandatory income interest" means the right of an

30  income beneficiary to receive net income that the terms of the

31  trust require the fiduciary to distribute.

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  1         (8)  "Net income" means the total receipts allocated to

  2  income during an accounting period minus the disbursements

  3  made from income during the period, plus or minus transfers

  4  under this chapter to or from income during the period.

  5         (9)  "Person" means an individual, corporation,

  6  business trust, estate, trust, partnership, limited liability

  7  company, association, joint venture, public corporation, or

  8  any other legal or commercial entity or a government or

  9  governmental subdivision, agency, or instrumentality.

10         (10)  "Principal" means property held in trust for

11  distribution to a remainder beneficiary when the trust

12  terminates.

13         (11)  "Remainder beneficiary" means a person entitled

14  to receive principal when an income interest ends.

15         (12)  "Terms of a trust" means the manifestation of the

16  intent of a grantor or decedent with respect to the trust,

17  expressed in a manner that admits of its proof in a judicial

18  proceeding, whether by written or spoken words or by conduct.

19         (13)  "Trustee" includes an original, additional, or

20  successor trustee, whether or not appointed or confirmed by a

21  court.

22         738.103  Fiduciary duties; general principles.--

23         (1)  In allocating receipts and disbursements to or

24  between principal and income, and with respect to any matter

25  within the scope of ss. 738.201 and 738.202 and ss.

26  738.301-738.303, a fiduciary:

27         (a)  Shall administer a trust or estate in accordance

28  with the terms of the trust or the will, even if there is a

29  different provision in this chapter.

30         (b)  May administer a trust or estate by the exercise

31  of a discretionary power of administration given to the

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  1  fiduciary by the terms of the trust or the will, even if the

  2  exercise of the power produces a result different from a

  3  result required or permitted by this chapter.

  4         (c)  Shall administer a trust or estate in accordance

  5  with this chapter if the terms of the trust or the will do not

  6  contain a different provision or do not give the fiduciary a

  7  discretionary power of administration.

  8         (d)  Shall add a receipt or charge a disbursement to

  9  principal to the extent the terms of the trust and this

10  chapter do not provide a rule for allocating the receipt or

11  disbursement to or between principal and income.

12         (2)  In exercising the power to adjust under s.

13  738.104(1) or a discretionary power of administration

14  regarding a matter within the scope of this chapter, whether

15  granted by the terms of a trust, a will, or this chapter, a

16  fiduciary shall administer a trust or estate impartially,

17  based on what is fair and reasonable to all of the

18  beneficiaries, except to the extent the terms of the trust or

19  the will clearly manifest an intention that the fiduciary

20  shall or may favor one or more of the beneficiaries.  A

21  determination in accordance with this chapter is presumed to

22  be fair and reasonable to all of the beneficiaries.

23         738.104  Trustee's power to adjust.--

24         (1)  A trustee may adjust between principal and income

25  to the extent the trustee considers necessary if the trustee

26  invests and manages trust assets as a prudent investor, the

27  terms of the trust describe the amount that may or shall be

28  distributed to a beneficiary by referring to the trust's

29  income, and the trustee determines, after applying the rules

30  in s. 738.103(1), that the trustee is unable to comply with s.

31  738.103(2).

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  1         (2)  In deciding whether and to what extent to exercise

  2  the power conferred by subsection (1), a trustee shall

  3  consider all factors relevant to the trust and its

  4  beneficiaries, including the following factors to the extent

  5  they are relevant:

  6         (a)  The nature, purpose, and expected duration of the

  7  trust.

  8         (b)  The intent of the grantor.

  9         (c)  The identity and circumstances of the

10  beneficiaries.

11         (d)  The needs for liquidity, regularity of income, and

12  preservation and appreciation of capital.

13         (e)  The assets held in the trust; the extent to which

14  the assets consist of financial assets, interests in closely

15  held enterprises, tangible and intangible personal property,

16  or real property; the extent to which an asset is used by a

17  beneficiary; and whether an asset was purchased by the trustee

18  or received from the grantor.

19         (f)  The net amount allocated to income under the other

20  sections of this chapter and the increases or decreases in the

21  value of the principal assets, which the trustee may estimate

22  as to assets for which market values are not readily

23  available.

24         (g)  Whether and to what extent the terms of the trust

25  give the trustee the power to invade principal or accumulate

26  income or prohibit the trustee from invading principal or

27  accumulating income and the extent to which the trustee has

28  exercised a power from time to time to invade principal or

29  accumulate income.

30

31

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  1         (h)  The actual and anticipated effect of economic

  2  conditions on principal and income and effects of inflation

  3  and deflation.

  4         (i)  The anticipated tax consequences of an adjustment.

  5         (3)  A trustee may not make an adjustment:

  6         (a)  That diminishes the income interest in a trust

  7  that requires all of the income to be paid at least annually

  8  to a spouse and for which an estate tax or gift tax marital

  9  deduction would be allowed, in whole or in part, if the

10  trustee did not have the power to adjust;

11         (b)  That reduces the actuarial value of the income

12  interest in a trust to which a person transfers property with

13  the intent to qualify for a gift tax exclusion;

14         (c)  That changes the amount payable to a beneficiary

15  as a fixed annuity or a fixed fraction of the value of the

16  trust assets;

17         (d)  From any amount that is permanently set aside for

18  charitable purposes under a will or the terms of a trust

19  unless both income and principal are so set aside;

20         (e)  If possessing or exercising the power to adjust

21  causes an individual to be treated as the owner of all or part

22  of the trust for income tax purposes and the individual would

23  not be treated as the owner if the trustee did not possess the

24  power to adjust;

25         (f)  If possessing or exercising the power to adjust

26  causes all or part of the trust assets to be included for

27  estate tax purposes in the estate of an individual who has the

28  power to remove a trustee or appoint a trustee, or both, and

29  the assets would not be included in the estate of the

30  individual if the trustee did not possess the power to adjust;

31         (g)  If the trustee is a beneficiary of the trust; or

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  1         (h)  If the trustee is not a beneficiary of the trust

  2  but the adjustment would benefit the trustee directly or

  3  indirectly.

  4         (4)  If paragraph (3)(e), paragraph (3)(f), paragraph

  5  (3)(g), or paragraph (3)(h) applies to a trustee and there is

  6  more than one trustee, a cotrustee to whom the provision does

  7  not apply may make the adjustment unless the exercise of the

  8  power by the remaining trustee is not permitted by the terms

  9  of the trust.

10         (5)  A trustee may release the entire power to adjust

11  conferred by subsection (1) or may release only the power to

12  adjust from income to principal or the power to adjust from

13  principal to income if the trustee is uncertain about whether

14  the possessing or exercising the power will cause a result

15  described in paragraphs (3)(a)-(f) or paragraph (3)(h) or if

16  the trustee determines that possessing or exercising the power

17  will or may deprive the trust of a tax benefit or impose a tax

18  burden not described in subsection (3).  The release may be

19  permanent or for a specified period, including a period

20  measured by the life of an individual.

21         (6)  Terms of a trust that limit a trustee's power to

22  adjust between principal and income do not affect the

23  application of this section unless it is clear from the terms

24  of the trust that the terms are intended to deny the trustee

25  the power to adjust conferred by subsection (1).

26         (7)  Nothing in this chapter is intended to create or

27  imply a duty to make an adjustment and no inference of

28  impropriety shall be made as a result of a trustee not

29  exercising the power to adjust conferred by subsection (1).

30         (8)  With respect to a trust in existence on January 1,

31  2003:

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  1         (a)  A trustee shall not have the power to adjust under

  2  this section if, within 60 days after the date of the

  3  statement required in subsection (9), a super majority of the

  4  trust beneficiaries deliver to the trustee a written objection

  5  to the application of this section to such trust. An objection

  6  shall be deemed to be delivered to the trustee on the date the

  7  objection is mailed to the mailing address listed in the

  8  notice provided in subsection (9).

  9         (b)  An objection under this section may be executed by

10  a legal representative or natural guardian of a beneficiary

11  without the filing of any proceeding or approval of any court.

12         (c)  If an objection is delivered to the trustee, then

13  the trustee may petition the circuit court for an order

14  quashing the objection and vesting in such trustee the power

15  to adjust under this section.  The burden will be on the

16  objecting beneficiaries to prove that the power to adjust

17  would be inequitable, illegal, or otherwise in contravention

18  of the grantor's intent.  The court may award costs and

19  attorney's fees relating to the trustee's petition in the same

20  manner as in chancery actions.  When costs and attorney's fees

21  are to be paid out of the trust, the court may, in its

22  discretion, direct from which part of the trust they shall be

23  paid.

24         (d)  If no timely objection is made or if the trustee

25  is vested with the power to adjust by court order, the trustee

26  may thereafter exercise the power to adjust without providing

27  notice of its intent to do so unless, in vesting the trustee

28  with the power to adjust, the court determines that unusual

29  circumstances require otherwise.

30         (e)1.  If a trustee makes a good-faith effort to comply

31  with the notice provisions of subsection (9), but fails to

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  1  deliver notice to one or more beneficiaries entitled to such

  2  notice, neither the validity of the notice required under this

  3  subsection, nor the trustee's power to adjust under this

  4  section shall be affected until the trustee has actual notice

  5  that one or more beneficiaries entitled to notice were not

  6  notified. Until the trustee has actual notice of the notice

  7  deficiency, the trustee shall have all of the powers and

  8  protections granted a trustee with the power to adjust under

  9  this chapter.

10         2.  When the trustee has actual notice that one or more

11  beneficiaries entitled to notice under subsection (9) were not

12  notified, the trustee's power to adjust under this section

13  shall cease until all beneficiaries who are entitled to such

14  notice, including those who were previously provided with such

15  notice, are notified and given the opportunity to object as

16  provided for under this subsection.

17         (f)  The objection of a super majority of beneficiaries

18  under this subsection shall be valid for a period of 1 year

19  after the date of the notice set forth in subsection (9). Upon

20  expiration of the objection, the trustee may thereafter give a

21  new notice under subsection (9).

22         (g)  Nothing in this section is intended to create or

23  imply a duty of the trustee of a trust existing on January 1,

24  2003, to seek a power to adjust pursuant to this subsection or

25  to give the notice described in subsection (9) if the trustee

26  does not desire to have a power to adjust under this section,

27  and no inference of impropriety shall be made as the result of

28  a trustee not seeking a power to adjust pursuant to this

29  subsection.

30         (9)(a)  A trustee of a trust in existence on January 1,

31  2003, that is not prohibited under subsection (3) from

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  1  exercising the power to adjust shall, any time prior to

  2  initially exercising the power, provide to all reasonably

  3  ascertainable current beneficiaries described in s.

  4  737.303(4)(b)1. and all reasonably ascertainable remainder

  5  beneficiaries described in s. 737.303(4)(b)2. a statement

  6  containing the following:

  7         1.  The name, telephone number, street address, and

  8  mailing address of the trustee and of any individuals who may

  9  be contacted for further information;

10         2.  A statement that unless a super majority of the

11  beneficiaries objects to the application of this section to

12  the trust within 60 days after the date the statement pursuant

13  to this subsection was served, section 738.104, Florida

14  Statutes, shall apply to the trust; and

15         3.  A statement that, if section 738.104, Florida

16  Statutes, applies to the trust, the trustee will have the

17  power to adjust between income and principal and that such a

18  power may have an effect on the distributions to such

19  beneficiary from the trust.

20         (b)  The statement may contain information regarding a

21  trustee's fiduciary obligations with respect to the power to

22  adjust between income and principal under this section.

23         (c)  The statement referred to in this subsection shall

24  be served informally, in the manner provided in the Florida

25  Rules of Civil Procedure relating to service of pleadings

26  subsequent to the initial pleading.

27         (d)  For purposes of subsection (8) and this

28  subsection, a "super majority of the trust beneficiaries"

29  means at least two-thirds in interest of the reasonably

30  ascertainable current beneficiaries described in s.

31  737.303(4)(b)1. or two-thirds in interest of the reasonably

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  1  ascertainable remainder beneficiaries described in s.

  2  737.303(4)(b)2., if the interests of the beneficiaries are

  3  reasonably ascertainable, otherwise, it means two-thirds in

  4  number of either such class.

  5         (10)  A trust exists on January 1, 2003, if it is not

  6  revocable on January 1, 2003. A trust is revocable if

  7  revocable by the grantor alone or in conjunction with any

  8  other person. A trust is not revocable for purposes of this

  9  section if revocable by the grantor only with the consent of

10  all persons having a beneficial interest in the property.

11         738.1041  Total return unitrust.--

12         (1)  For purposes of this section, the term:

13         (a)  "Disinterested person" means a person who is not a

14  "related or subordinate party" as defined in s. 672(c) of the

15  United States Internal Revenue Code, 26 U.S.C. s. 1 et seq.,

16  or any successor provision thereof, with respect to the person

17  then acting as trustee of the trust and excludes the grantor

18  and any interested trustee.

19         (b)  "Income trust" means a trust, created by either an

20  inter vivos or a testamentary instrument, which directs or

21  permits the trustee to distribute the net income of the trust

22  to one or more persons, either in fixed proportions or in

23  amounts or proportions determined by the trustee.

24  Notwithstanding the foregoing, no trust that otherwise is an

25  "income trust" shall qualify hereunder, if it may be subject

26  to taxation under the Internal Revenue Code, 26 U.S.C. s. 2001

27  or s. 2501, until the expiration of the period for filing the

28  return therefor, including extensions.

29         (c)  "Interested distributee" means a person to whom

30  distributions of income or principal can currently be made who

31  has the power to remove the existing trustee and designate as

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  1  successor a person who may be a "related or subordinate

  2  party," as defined in the Internal Revenue Code, 26 U.S.C. s.

  3  672(c), with respect to such distributee.

  4         (d)  "Interested trustee" means an individual trustee

  5  to whom the net income or principal of the trust can currently

  6  be distributed or would be distributed if the trust were then

  7  to terminate and be distributed, any trustee who may be

  8  removed and replaced by an interested distributee, or an

  9  individual trustee whose legal obligation to support a

10  beneficiary may be satisfied by distributions of income and

11  principal of the trust.

12         (2)  A trustee may, without court approval, convert an

13  income trust to a total return unitrust, reconvert a total

14  return unitrust to an income trust, or change the percentage

15  used to calculate the unitrust amount or the method used to

16  determine the fair market value of the trust if:

17         (a)  The trustee adopts a written statement regarding

18  trust distributions that provides:

19         1.  In the case of a trust being administered as an

20  income trust, that future distributions from the trust will be

21  unitrust amounts rather than net income, and indicates the

22  manner in which the unitrust amount will be calculated and the

23  method in which the fair market value of the trust will be

24  determined.

25         2.  In the case of a trust being administered as a

26  total return unitrust, that:

27         a.  Future distributions from the trust will be net

28  income rather than unitrust amounts; or

29         b.  The percentage used to calculate the unitrust

30  amount or the method used to determine the fair market value

31  of the trust will be changed, and indicates the manner in

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  1  which the new unitrust amount will be calculated and the

  2  method in which the new fair market value of the trust will be

  3  determined;

  4         (b)1.  The trustee determines, or if there is no

  5  trustee other than an interested trustee, the trustee appoints

  6  a disinterested person who, in its sole discretion but acting

  7  in a fiduciary capacity, determines for the trustee:

  8         a.  The percentage to be used to calculate the unitrust

  9  amount, provided the percentage used is not greater than 5

10  percent nor less than 3 percent;

11         b.  The method to be used in determining the fair

12  market value of the trust; and

13         c.  Which assets, if any, are to be excluded in

14  determining the unitrust amount; or

15         2.  The trustee administers the trust such that:

16         a.  The percentage used to calculate the unitrust

17  amount is 50 percent of the applicable federal rate as defined

18  in the Internal Revenue Code, 26 U.S.C. s. 7520 in effect for

19  the month the conversion under this section becomes effective

20  and for each January thereafter; however, the percentage shall

21  never be greater than 5 percent nor less than 3 percent; and

22         b.  The fair market value of the trust shall be

23  determined at least annually on an asset-by-asset basis,

24  reasonably and in good faith, in accordance with the

25  provisions of s. 738.202(5), except the following property

26  shall not be included in determining the value of the trust:

27         (I)  Any residential property or any tangible personal

28  property that, as of the first business day of the current

29  valuation year, one or more current beneficiaries of the trust

30  have or have had the right to occupy, or have or have had the

31  right to possess or control (other than in his or her capacity

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  1  as trustee of the trust), and instead the right of occupancy

  2  or the right to possession and control shall be deemed to be

  3  the unitrust amount with respect to such property; however,

  4  the unitrust amount shall be adjusted to take into account

  5  partial distributions from or receipt into the trust of such

  6  property during the valuation year.

  7         (II)  Any asset specifically given to a beneficiary and

  8  the return on investment on such property, which return on

  9  investment shall be distributable to such beneficiary.

10         (III)  Any asset while held in a testator's estate;

11         (c)  The trustee sends written notice of its intention

12  to take such action, along with copies of such written

13  statement and this section, and, if applicable, the

14  determinations of either the trustee or the disinterested

15  person to:

16         1.  The grantor of the trust, if living.

17         2.  All living persons who are currently receiving or

18  eligible to receive distributions of income of the trust.

19         3.  All living persons who would receive distributions

20  of principal of the trust if the trust were to terminate at

21  the time of the giving of such notice (without regard to the

22  exercise of any power of appointment) or, if the trust does

23  not provide for its termination, all living persons who would

24  receive or be eligible to receive distributions of income or

25  principal of the trust if the persons identified in

26  subparagraph 2. were deceased.

27         4.  All persons acting as adviser or protector of the

28  trust.

29

30  Notice under this paragraph shall be served informally, in the

31  manner provided in the Florida Rules of Civil Procedure

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  1  relating to service of pleadings subsequent to the initial

  2  pleading;

  3         (d)  At least one person receiving notice under each of

  4  subparagraphs (c)2. and 3. is legally competent; and

  5         (e)  No person receiving such notice objects, by

  6  written instrument delivered to the trustee, to the proposed

  7  action of the trustee or the determinations of the

  8  disinterested person within 60 days after receipt of such

  9  notice.

10         (3)  If a trustee desires to convert an income trust to

11  a total return unitrust, reconvert a total return unitrust to

12  an income trust, or change the percentage used to calculate

13  the unitrust amount or the method used to determine a fair

14  market value of the trust but does not have the ability to or

15  elects not to do it under subsection (2), the trustee may

16  petition the circuit court for such order as the trustee deems

17  appropriate.  In that event, the court, in its own discretion

18  or on the petition of such trustee or any person having an

19  income or remainder interest in the trust, may appoint a

20  disinterested person who, acting in a fiduciary capacity,

21  shall present such information to the court as shall be

22  necessary for the court to make a determination hereunder.

23         (4)  All determinations made pursuant to

24  sub-subparagraph (2)(b)2.b. shall be conclusive if reasonable

25  and made in good faith.  Such determination shall be

26  conclusively presumed to have been made reasonably and in good

27  faith unless proven otherwise in a proceeding commenced by or

28  on behalf of a person interested in the trust within the time

29  provided in s. 737.307. The burden will be on the objecting

30  interested party to prove that the determinations were not

31  made reasonably and in good faith.

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  1         (5)  The unitrust amount shall not be less than the net

  2  income of the trust, determined without regard to the

  3  provisions of subsection (6), for:

  4         (a)  A trust for which a marital deduction has been

  5  taken for federal tax purposes under the Internal Revenue

  6  Code, 26 U.S.C. s. 2056 or s. 2523, during the lifetime of the

  7  spouse for whom the trust was created; or

  8         (b)  A trust to which the generation-skipping transfer

  9  tax due under the Internal Revenue Code, 26 U.S.C. s. 2601

10  does not apply by reason of any effective date or transition

11  rule.

12

13  Paragraph (a) will not apply to any trust to the extent that

14  the use of a total return unitrust is recognized for federal

15  tax purposes under the Internal Revenue Code, 26 U.S.C. s.

16  2056 or s. 2523.  Paragraph (b) will not apply to any trust to

17  the extent that the use of a total return unitrust is

18  recognized for federal tax purposes under the Internal Revenue

19  Code, 26 U.S.C. s. 2601.

20         (6)  Following the conversion of an income trust to a

21  total return unitrust, the trustee:

22         (a)  Shall treat the unitrust amount as if it were net

23  income of the trust for purposes of determining the amount

24  available, from time to time, for distribution from the trust.

25         (b)  May allocate to trust income for each taxable year

26  of the trust, or portion thereof:

27         1.  Net short-term capital gain described in the

28  Internal Revenue Code, 26 U.S.C. s. 1222(5) for such year, or

29  portion thereof, but only to the extent that the amount so

30  allocated together with all other amounts allocated to trust

31  income, as determined under the provisions of this chapter

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  1  without regard to this section and s. 738.104, for such year,

  2  or portion thereof, does not exceed the unitrust amount for

  3  such year, or portion thereof; and

  4         2.  Net long-term capital gain described in the

  5  Internal Revenue Code, 26 U.S.C. s. 1222(7) for such year, or

  6  portion thereof, but only to the extent that the amount so

  7  allocated together with all other amounts, including amounts

  8  described in subparagraph 1., allocated to trust income for

  9  such year, or portion thereof, does not exceed the unitrust

10  amount for such year, or portion thereof.

11         (7)  In administering a total return unitrust, the

12  trustee may, in its sole discretion but subject to the

13  provisions of the governing instrument, determine:

14         (a)  The effective date of the conversion.

15         (b)  The timing of distributions, including provisions

16  for prorating a distribution for a short year in which a

17  beneficiary's right to payments commences or ceases.

18         (c)  Whether distributions are to be made in cash or in

19  kind or partly in cash and partly in kind.

20         (d)  If the trust is reconverted to an income trust,

21  the effective date of such reconversion.

22         (e)  Such other administrative issues as may be

23  necessary or appropriate to carry out the purposes of this

24  section.

25         (8)  Conversion to a total return unitrust under the

26  provisions of this section shall not affect any other

27  provision of the governing instrument, if any, regarding

28  distributions of principal.

29         (9)  In the case of a trust for which a marital

30  deduction has been taken for federal tax purposes under the

31  Internal Revenue Code, 26 U.S.C. s. 2056 or s. 2523, the

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  1  spouse otherwise entitled to receive the net income of the

  2  trust shall have the right, by written instrument delivered to

  3  the trustee, to compel the reconversion during his or her

  4  lifetime of the trust from a total return unitrust to an

  5  income trust, notwithstanding anything in this section to the

  6  contrary, unless the use of a total return unitrust is

  7  recognized for federal tax purposes under the Internal Revenue

  8  Code, 26 U.S.C. s. 2056 or s. 2523.

  9         (10)  Any trustee or disinterested person who in good

10  faith takes or fails to take any action under this section

11  shall not be liable to any person affected by such action or

12  inaction, regardless of whether such person received written

13  notice as provided in this section and regardless of whether

14  such person was under a legal disability at the time of the

15  delivery of such notice. Such person's exclusive remedy shall

16  be to obtain, under subsection (11), an order of the court

17  directing the trustee to convert an income trust to a total

18  return unitrust, to reconvert from a total return unitrust to

19  an income trust, or to change the percentage used to calculate

20  the unitrust amount.

21         (11)  If a majority in interest of either the income or

22  remainder beneficiaries of an income trust has delivered to

23  the trustee a written objection to the amount of the income

24  distributions of the trust, and, if the trustee has failed to

25  resolve the objection to the satisfaction of the objecting

26  beneficiaries within 6 months from the receipt of such written

27  objection, then the objecting beneficiaries may petition the

28  court in accordance with subsection (3).

29         (12)  This section shall be construed as pertaining to

30  the administration of a trust and shall be available to any

31

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  1  trust that is administered in this state under Florida law

  2  unless:

  3         (a)  The governing instrument reflects an intention

  4  that the current beneficiary or beneficiaries are to receive

  5  an amount other than a reasonable current return from the

  6  trust;

  7         (b)  The trust is a trust described in the Internal

  8  Revenue Code, 26 U.S.C. s. 170(f)(2)(B), s. 642(c)(5), s.

  9  664(d), s. 1361(d), s. 2702(a)(3), or s. 2702(b);

10         (c)  One or more persons to whom the trustee could

11  distribute income have a power of withdrawal over the trust

12  that is not subject to an ascertainable standard under the

13  Internal Revenue Code, 26 U.S.C. s. 2041 or s. 2514 or that

14  can be exercised to discharge a duty of support he or she

15  possesses;

16         (d)  The governing instrument expressly prohibits use

17  of this section by specific reference to the section.  A

18  provision in the governing instrument that, "The provisions of

19  section 738.1041, Florida Statutes, as amended, or any

20  corresponding provision of future law, shall not be used in

21  the administration of this trust," or similar words reflecting

22  such intent shall be sufficient to preclude the use of this

23  section; or

24         (e)  The trust is a trust with respect to which a

25  trustee currently possesses the power to adjust under s.

26  738.104.

27         738.105  Judicial control of discretionary powers.--

28         (1)  A court shall not change a fiduciary's decision to

29  exercise or not to exercise a discretionary power conferred by

30  this chapter unless the court determines that the decision was

31  an abuse of the fiduciary's discretion.  A court shall not

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  1  determine that a fiduciary abused its discretion merely

  2  because the court would have exercised the discretion in a

  3  different manner or would not have exercised the discretion.

  4         (2)  The decisions to which subsection (1) applies

  5  include:

  6         (a)  A determination under s. 738.104(1) of whether and

  7  to what extent an amount should be transferred from principal

  8  to income or from income to principal.

  9         (b)  A determination of the factors that are relevant

10  to the trust and trust beneficiaries, the extent to which such

11  factors are relevant, and the weight, if any, to be given to

12  the relevant factors, in deciding whether and to what extent

13  to exercise the power conferred by s. 738.104(1).

14         (3)  If a court determines that a fiduciary has abused

15  its discretion, the remedy shall be to restore the income and

16  remainder beneficiaries to the positions they would have

17  occupied if the fiduciary had not abused its discretion,

18  according to the following rules:

19         (a)  To the extent the abuse of discretion has resulted

20  in no distribution to a beneficiary or a distribution that is

21  too small, the court shall require the fiduciary to distribute

22  from the trust to the beneficiary an amount the court

23  determines will restore the beneficiary, in whole or in part,

24  to his or her appropriate position.

25         (b)  To the extent the abuse of discretion has resulted

26  in a distribution to a beneficiary that is too large, the

27  court shall restore the beneficiaries, the trust, or both, in

28  whole or in part, to their appropriate positions by requiring

29  the fiduciary to withhold an amount from one or more future

30  distributions to the beneficiary who received the distribution

31

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  1  that was too large or requiring that beneficiary to return

  2  some or all of the distribution to the trust.

  3         (c)  To the extent the court is unable, after applying

  4  paragraphs (a) and (b), to restore the beneficiaries, the

  5  trust, or both, to the positions they would have occupied if

  6  the fiduciary had not abused its discretion, the court may

  7  require the fiduciary to pay an appropriate amount from its

  8  own funds to one or more of the beneficiaries or the trust or

  9  both.

10         (4)  Upon the filing of a petition by the fiduciary,

11  the court having jurisdiction over the trust or estate shall

12  determine whether a proposed exercise or nonexercise by the

13  fiduciary of a discretionary power conferred by this chapter

14  will result in an abuse of the fiduciary's discretion.  If the

15  petition describes the proposed exercise or nonexercise of the

16  power and contains sufficient information to inform the

17  beneficiaries of the reasons for the proposal, the facts upon

18  which the fiduciary relies, and an explanation of how the

19  income and remainder beneficiaries will be affected by the

20  proposed exercise or nonexercise of the power, a beneficiary

21  who challenges the proposed exercise or nonexercise has the

22  burden of establishing that such exercise or nonexercise will

23  result in an abuse of discretion.

24         (5)  If an action is instituted alleging an abuse of

25  discretion in the exercise or nonexercise of the power of

26  adjustment conferred by s. 738.104(1) and the court determines

27  that no abuse of discretion has occurred, the trustee's costs

28  and attorney's fees incurred in defending the action shall be

29  paid from the trust assets.

30         738.201  Determination and distribution of net

31  income.--After a decedent dies, in the case of an estate, or

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  1  after an income interest in a trust ends, the following rules

  2  apply:

  3         (1)  A fiduciary of an estate or of a terminating

  4  income interest shall determine the amount of net income and

  5  net principal receipts received from property specifically

  6  given to a beneficiary under the rules in ss. 738.301-738.706

  7  which apply to trustees and the rules in subsection (5).  The

  8  fiduciary shall distribute the net income and net principal

  9  receipts to the beneficiary who is to receive the specific

10  property.

11         (2)  A fiduciary shall determine the remaining net

12  income of a decedent's estate or a terminating income interest

13  under the rules in ss. 738.301-738.706 which apply to trustees

14  and by:

15         (a)  Including in net income all income from property

16  used to discharge liabilities.

17         (b)  Paying from income or principal, in the

18  fiduciary's discretion, fees of attorneys, accountants, and

19  fiduciaries; court costs and other expenses of administration;

20  and interest on death taxes, but the fiduciary may pay those

21  expenses from income of property passing to a trust for which

22  the fiduciary claims an estate tax marital or charitable

23  deduction only to the extent the payment of those expenses

24  from income will not cause the reduction or loss of the

25  deduction.

26         (c)  Paying from principal all other disbursements made

27  or incurred in connection with the settlement of a decedent's

28  estate or the winding up of a terminating income interest,

29  including debts, funeral expenses, disposition of remains,

30  family allowances, and death taxes and related penalties that

31

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  1  are apportioned to the estate or terminating income interest

  2  by the will, the terms of the trust, or applicable law.

  3         (3)  A fiduciary shall distribute to a beneficiary who

  4  receives a pecuniary amount outright the interest or any other

  5  amount provided by the will, the terms of the trust, or

  6  applicable law from net income determined under subsection (2)

  7  or from principal to the extent net income is insufficient.

  8  If a beneficiary is to receive a pecuniary amount outright

  9  from a trust after an income interest ends and no interest or

10  other amount is provided for by the terms of the trust or

11  applicable law, the fiduciary shall distribute the interest or

12  other amount to which the beneficiary would be entitled under

13  applicable law if the pecuniary amount were required to be

14  paid under a will.

15         (4)  A fiduciary shall distribute the net income

16  remaining after distributions required by subsection (3) in

17  the manner described in s. 738.202 to all other beneficiaries,

18  including a beneficiary who receives a pecuniary amount in

19  trust, even if the beneficiary holds an unqualified power to

20  withdraw assets from the trust or other presently exercisable

21  general power of appointment over the trust.

22         (5)  A fiduciary may not reduce principal or income

23  receipts from property described in subsection (1) because of

24  a payment described in s. 738.701 or s. 738.702 to the extent

25  the will, the terms of the trust, or applicable law requires

26  the fiduciary to make the payment from assets other than the

27  property or to the extent the fiduciary recovers or expects to

28  recover the payment from a third party.  The net income and

29  principal receipts from the property are determined by

30  including all of the amounts the fiduciary receives or pays

31  with respect to the property, whether those amounts accrued or

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  1  became due before, on, or after the date of a decedent's death

  2  or an income interest's terminating event, and by making a

  3  reasonable provision for amounts the fiduciary believes the

  4  estate or terminating income interest may become obligated to

  5  pay after the property is distributed.

  6         738.202  Distribution to residuary and remainder

  7  beneficiaries.--

  8         (1)  Each beneficiary described in s. 738.201(4) is

  9  entitled to receive a portion of the net income equal to the

10  beneficiary's fractional interest in undistributed principal

11  assets, using values as of the distribution date.  If a

12  fiduciary makes more than one distribution of assets to

13  beneficiaries to whom this section applies, each beneficiary,

14  including one who does not receive part of the distribution,

15  is entitled, as of each distribution date, to the net income

16  the fiduciary has received after the date of death or

17  terminating event or earlier distribution date but has not

18  distributed as of the current distribution date.

19         (2)  In determining a beneficiary's share of net

20  income, the following rules apply:

21         (a)  The beneficiary is entitled to receive a portion

22  of the net income equal to the beneficiary's fractional

23  interest in the undistributed principal assets immediately

24  before the distribution date, including assets that later may

25  be sold to meet principal obligations.

26         (b)  The beneficiary's fractional interest in the

27  undistributed principal assets shall be calculated without

28  regard to property specifically given to a beneficiary and

29  property required to pay pecuniary amounts not in trust.

30         (c)  The beneficiary's fractional interest in the

31  undistributed principal assets shall be calculated on the

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  1  basis of the aggregate value of those assets as of the

  2  distribution date without reducing the value by any unpaid

  3  principal obligation.

  4         (d)  The distribution date for purposes of this section

  5  may be the date as of which the fiduciary calculates the value

  6  of the assets if that date is reasonably near the date on

  7  which assets are actually distributed.

  8         (3)  If a fiduciary does not distribute all of the

  9  collected but undistributed net income to each person as of a

10  distribution date, the fiduciary shall maintain appropriate

11  records showing the interest of each beneficiary in that net

12  income.

13         (4)  A fiduciary may apply the rules in this section,

14  to the extent the fiduciary considers appropriate, to net gain

15  or loss realized after the date of death or terminating event

16  or earlier distribution date from the disposition of a

17  principal asset if this section applies to the income from the

18  asset.

19         (5)  The value of trust assets shall be determined on

20  an asset-by-asset basis and shall be conclusive if reasonable

21  and determined in good faith. Determinations based on

22  appraisals performed within 2 years of the valuation date

23  shall be presumed reasonable. The value of trust assets shall

24  be conclusively presumed to be reasonable and determined in

25  good faith unless proven otherwise in a proceeding commenced

26  by or on behalf of a person interested in the trust within the

27  time provided in s. 737.307.

28         738.301  When right to income begins and ends.--An

29  income beneficiary is entitled to net income from the date on

30  which the income interest begins.

31

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  1         (1)  An income interest begins on the date specified in

  2  the terms of the trust or, if no date is specified, on the

  3  date an asset becomes subject to a trust or successive income

  4  interest.

  5         (2)  An asset becomes subject to a trust:

  6         (a)  On the date the asset is transferred to the trust

  7  in the case of an asset that is transferred to a trust during

  8  the transferor's life;

  9         (b)  On the date of a testator's death in the case of

10  an asset that becomes subject to a trust by reason of a will,

11  even if there is an intervening period of administration of

12  the testator's estate; or

13         (c)  On the date of an individual's death in the case

14  of an asset that is transferred to a fiduciary by a third

15  party because of the individual's death.

16         (3)  An asset becomes subject to a successive income

17  interest on the day after the preceding income interest ends,

18  as determined under subsection (4), even if there is an

19  intervening period of administration to wind up the preceding

20  income interest.

21         (4)  An income interest ends on the day before an

22  income beneficiary dies or another terminating event occurs,

23  or on the last day of a period during which there is no

24  beneficiary to whom a trustee may distribute income.

25         738.302  Apportionment of receipts and disbursements

26  when decedent dies or income interest begins.--

27         (1)  A trustee shall allocate an income receipt or

28  disbursement other than one to which s. 738.201(1) applies to

29  principal if the due date of the receipt or disbursement

30  occurs before a decedent dies in the case of an estate or

31

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  1  before an income interest begins in the case of a trust or

  2  successive income interest.

  3         (2)  A trustee shall allocate an income receipt or

  4  disbursement to income if the due date of the receipt or

  5  disbursement occurs on or after the date on which a decedent

  6  dies or an income interest begins and the due date is a

  7  periodic due date.  An income receipt or disbursement shall be

  8  treated as accruing from day to day if the due date of the

  9  receipt or disbursement is not periodic or the receipt or

10  disbursement has no due date.  The portion of the receipt or

11  disbursement accruing before the date on which a decedent dies

12  or an income interest begins shall be allocated to principal

13  and the balance shall be allocated to income.

14         (3)  An item of income or an obligation is due on the

15  date the payor is required to make a payment.  If a payment

16  date is not stated, there is no due date for the purposes of

17  this chapter.  Distributions to shareholders or other owners

18  from an entity to which s. 738.401 applies are deemed to be

19  due on the date fixed by the entity for determining who is

20  entitled to receive the distribution or, if no date is fixed,

21  on the declaration date for the distribution.  A due date is

22  periodic for receipts or disbursements that shall be paid at

23  regular intervals under a lease or an obligation to pay

24  interest or if an entity customarily makes distributions at

25  regular intervals.

26         (4)  Nothing in this section shall prevent the

27  application of s. 733.817 to apportion tax to the income

28  recipient under this section.

29         738.303  Apportionment when income interest ends.--

30         (1)  For purposes of this section, "undistributed

31  income" means net income received before the date on which an

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  1  income interest ends.  The term does not include an item of

  2  income or expense that is due or accrued or net income that

  3  has been added or is required to be added to principal under

  4  the terms of the trust.

  5         (2)  When a mandatory income interest ends, the trustee

  6  shall pay to a mandatory income beneficiary who survives that

  7  date, or the estate of a deceased mandatory income beneficiary

  8  whose death causes the interest to end, the beneficiary's

  9  share of the undistributed income that is not disposed of

10  under the terms of the trust unless the beneficiary has an

11  unqualified power to revoke more than 5 percent of the trust

12  immediately before the income interest ends.  In the latter

13  case, the undistributed income from the portion of the trust

14  that may be revoked shall be added to principal.

15         (3)  When a trustee's obligation to pay a fixed annuity

16  or a fixed fraction of the value of the trust's assets ends,

17  the trustee shall prorate the final payment if and to the

18  extent required by applicable law to accomplish a purpose of

19  the trust or its grantor relating to income, gift, estate, or

20  other tax requirements.

21         738.401  Character of receipts.--

22         (1)  For purposes of this section, "entity" means a

23  corporation, partnership, limited liability company, regulated

24  investment company, real estate investment trust, common trust

25  fund, or any other organization in which a trustee has an

26  interest other than a trust or estate to which s. 738.402

27  applies, a business or activity to which s. 738.403 applies,

28  or an asset-backed security to which s. 738.608 applies.

29         (2)  Except as otherwise provided in this section, a

30  trustee shall allocate to income money received from an

31  entity.

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  1         (3)  A trustee shall allocate the following receipts

  2  from an entity to principal:

  3         (a)  Property other than money.

  4         (b)  Money received in one distribution or a series of

  5  related distributions in exchange for part or all of a trust's

  6  interest in the entity.

  7         (c)  Money received in total or partial liquidation of

  8  the entity.

  9         (d)  Money received from an entity that is a regulated

10  investment company or a real estate investment trust if the

11  money distributed represents a distribution of short-term or

12  long-term capital gain for federal income tax purposes.

13         (4)  If a trustee elects, or continues an election made

14  by its predecessor, to reinvest dividends in shares of stock

15  of a distributing corporation or fund, whether evidenced by

16  new certificates or entries on the books of the distributing

17  entity, the new shares shall retain their character as income.

18         (5)  Money is received in partial liquidation:

19         (a)  To the extent the entity, at or near the time of a

20  distribution, indicates that such money is a distribution in

21  partial liquidation; or

22         (b)  If the total amount of money and property received

23  in a distribution or series of related distributions is

24  greater than 20 percent of the entity's gross assets, as shown

25  by the entity's year-end financial statements immediately

26  preceding the initial receipt.

27         (6)  Money is not received in partial liquidation, nor

28  may money be taken into account under paragraph (5)(b), to the

29  extent such money does not exceed the amount of income tax a

30  trustee or beneficiary must pay on taxable income of the

31  entity that distributes the money.

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  1         (7)  A trustee may rely upon a statement made by an

  2  entity about the source or character of a distribution if the

  3  statement is made at or near the time of distribution by the

  4  entity's board of directors or other person or group of

  5  persons authorized to exercise powers to pay money or transfer

  6  property comparable to those of a corporation's board of

  7  directors.

  8         738.402  Distribution from trust or estate.--A trustee

  9  shall allocate to income an amount received as a distribution

10  of income from a trust or an estate in which the trust has an

11  interest other than a purchased interest and shall allocate to

12  principal an amount received as a distribution of principal

13  from such a trust or estate.  If a trustee purchases an

14  interest in a trust that is an investment entity, or a

15  decedent or donor transfers an interest in such a trust to a

16  trustee, s. 738.401 or s. 738.608 applies to a receipt from

17  the trust.

18         738.403  Business and other activities conducted by

19  trustee.--

20         (1)  If a trustee who conducts a business or other

21  activity determines that it is in the best interest of all the

22  beneficiaries to account separately for the business or

23  activity instead of accounting for the business or activity as

24  part of the trust's general accounting records, the trustee

25  may maintain separate accounting records for the transactions

26  of such business or other activity, whether or not the assets

27  of such business or activity are segregated from other trust

28  assets.

29         (2)  A trustee who accounts separately for a business

30  or other activity may determine the extent to which the net

31  cash receipts of such business or activity must be retained

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  1  for working capital, the acquisition or replacement of fixed

  2  assets, and other reasonably foreseeable needs of the business

  3  or activity, and the extent to which the remaining net cash

  4  receipts are accounted for as principal or income in the

  5  trust's general accounting records.  If a trustee sells assets

  6  of the business or other activity, other than in the ordinary

  7  course of the business or activity, the trustee shall account

  8  for the net amount received as principal in the trust's

  9  general accounting records to the extent the trustee

10  determines that the amount received is no longer required in

11  the conduct of the business.

12         (3)  Activities for which a trustee may maintain

13  separate accounting records include:

14         (a)  Retail, manufacturing, service, and other

15  traditional business activities.

16         (b)  Farming.

17         (c)  Raising and selling livestock and other animals.

18         (d)  Management of rental properties.

19         (e)  Extraction of minerals and other natural

20  resources.

21         (f)  Timber operations.

22         (g)  Activities to which s. 738.608 applies.

23         738.501  Principal receipts.--A trustee shall allocate

24  to principal:

25         (1)  To the extent not allocated to income under this

26  chapter, assets received from a transferor during the

27  transferor's lifetime, a decedent's estate, a trust with a

28  terminating income interest, or a payor under a contract

29  naming the trust or its trustee as beneficiary.

30

31

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  1         (2)  Money or other property received from the sale,

  2  exchange, liquidation, or change in form of a principal asset,

  3  including realized profit, subject to this section.

  4         (3)  Amounts recovered from third parties to reimburse

  5  the trust because of disbursements described in s.

  6  738.702(1)(g) or for other reasons to the extent not based on

  7  the loss of income.

  8         (4)  Proceeds of property taken by eminent domain but a

  9  separate award made for the loss of income with respect to an

10  accounting period during which a current income beneficiary

11  had a mandatory income interest is income.

12         (5)  Net income received in an accounting period during

13  which there is no beneficiary to whom a trustee may or shall

14  distribute income.

15         (6)  Other receipts as provided in ss. 738.601-738.608.

16         738.502  Rental property.--To the extent a trustee

17  accounts for receipts from rental property pursuant to this

18  section, the trustee shall allocate to income an amount

19  received as rent of real or personal property, including an

20  amount received for cancellation or renewal of a lease.  An

21  amount received as a refundable deposit, including a security

22  deposit or a deposit that is to be applied as rent for future

23  periods, shall be added to principal and held subject to the

24  terms of the lease and is not available for distribution to a

25  beneficiary until the trustee's contractual obligations have

26  been satisfied with respect to that amount.

27         738.503  Obligation to pay money.--

28         (1)  An amount received as interest, whether determined

29  at a fixed, variable, or floating rate, on an obligation to

30  pay money to the trustee, including an amount received as

31

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  1  consideration for prepaying principal, shall be allocated to

  2  income without any provision for amortization of premium.

  3         (2)  Except as otherwise provided herein, a trustee

  4  shall allocate to principal an amount received from the sale,

  5  redemption, or other disposition of an obligation to pay money

  6  to the trustee.

  7         (3)  The increment in value of a bond or other

  8  obligation for the payment of money bearing no stated interest

  9  but payable at a future time in excess of the price at which

10  it was issued or purchased, if purchased after issuance, is

11  distributable as income.  If the increment in value accrues

12  and becomes payable pursuant to a fixed schedule of

13  appreciation, it may be distributed to the beneficiary who was

14  the income beneficiary at this time of increment from the

15  first principal cash available or, if none is available, when

16  the increment is realized by sale, redemption, or other

17  disposition.  When unrealized increment is distributed as

18  income but out of principal, the principal shall be reimbursed

19  for the increment when realized. If, in the reasonable

20  judgment of the trustee, exercised in good faith, the ultimate

21  payment of the bond principal is in doubt, the trustee may

22  withhold the payment of incremental interest to the income

23  beneficiary.

24         (4)  This section does not apply to an obligation to

25  which s. 738.602, s. 738.603, s. 738.604, s. 738.605, s.

26  738.607, or s. 738.608 applies.

27         738.504  Insurance policies and similar contracts.--

28         (1)  Except as otherwise provided in subsection (2), a

29  trustee shall allocate to principal the proceeds of a life

30  insurance policy or other contract in which the trust or its

31  trustee is named as beneficiary, including a contract that

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  1  insures the trust or its trustee against loss for damage to,

  2  destruction of, or loss of title to a trust asset.  The

  3  trustee shall allocate dividends on an insurance policy to

  4  income if the premiums on the policy are paid from income and

  5  to principal if the premiums are paid from principal.

  6         (2)  A trustee shall allocate to income proceeds of a

  7  contract that insures the trustee against loss of occupancy or

  8  other use by an income beneficiary, loss of income, or,

  9  subject to s. 738.403, loss of profits from a business.

10         (3)  This section does not apply to a contract to which

11  s. 738.602 applies.

12         738.601  Insubstantial allocations not required.--If a

13  trustee determines that an allocation between principal and

14  income required by s. 738.602, s. 738.603, s. 738.604, s.

15  738.605, or s. 738.608 is insubstantial, the trustee may

16  allocate the entire amount to principal unless one of the

17  circumstances described in s. 738.104(3) applies to the

18  allocation.  This power may be exercised by a cotrustee in the

19  circumstances described in s. 738.104(4) and may be released

20  for the reasons and in the manner described in s. 738.104(5).

21  An allocation is presumed to be insubstantial if:

22         (1)  The amount of the allocation would increase or

23  decrease net income in an accounting period, as determined

24  before the allocation, by less than 10 percent; or

25         (2)  The value of the asset producing the receipt for

26  which the allocation would be made is less than 10 percent of

27  the total value of the trust's assets at the beginning of the

28  accounting period.

29         738.602  Deferred compensation, annuities, and similar

30  payments.--

31

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  1         (1)  For purposes of this section, "payment" means a

  2  payment that a trustee may receive over a fixed number of

  3  years or during the life of one or more individuals because of

  4  services rendered or property transferred to the payor in

  5  exchange for future payments.  The term includes a payment

  6  made in money or property from the payor's general assets or

  7  from a separate fund created by the payor, including a private

  8  or commercial annuity, an individual retirement account, and a

  9  pension, profit-sharing, stock-bonus, or stock-ownership plan.

10         (2)  With respect to payments that may be characterized

11  as interest, dividends, or their equivalent:

12         (a)  A trustee shall allocate to income in the

13  following order:

14         1.  First, payments characterized by the payor as

15  interest or dividends or as a payment made in lieu of interest

16  or dividends.

17         2.  Second, all other payments to the extent that the

18  trustee, reasonably and in good faith, determines that such

19  payments represent interest, dividends, or their equivalent.

20         (b)  A trustee shall allocate to principal the balance

21  of any payment not characterized as, or otherwise determined

22  to be, interest, dividends, or their equivalent.

23         (3)  If no part of a payment is characterized as, or

24  otherwise determined to be, interest, a dividend, or an

25  equivalent payment and all or part of the payment is required

26  to be made, a trustee shall allocate to income 10 percent of

27  the part that is required to be made during the accounting

28  period and the balance to principal.  If no part of a payment

29  is required to be made or the payment received is the entire

30  amount to which the trustee is entitled, the trustee shall

31  allocate the entire payment to principal.  For purposes of

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  1  this subsection, a payment is not "required to be made" to the

  2  extent the payment is made because the trustee exercises a

  3  right of withdrawal.

  4         (4)  If, to obtain an estate tax marital deduction for

  5  a trust, a trustee must allocate more of a payment to income

  6  than provided for by this section, the trustee shall allocate

  7  to income the additional amount necessary to obtain the

  8  marital deduction.

  9         (5)  This section does not apply to payments to which

10  s. 738.603 applies.

11         738.603  Liquidating asset.--

12         (1)  For purposes of this section, "liquidating asset"

13  means an asset the value of which will diminish or terminate

14  because the asset is expected to produce receipts for a period

15  of limited duration.  The term includes a leasehold, patent,

16  copyright, royalty right, and right to receive payments during

17  a period of more than 1 year under an arrangement that does

18  not provide for the payment of interest on the unpaid balance.

19  The term does not include a payment subject to s. 738.602,

20  resources subject to s. 738.604, timber subject to s. 738.605,

21  an activity subject to s. 738.607, an asset subject to s.

22  738.608, or any asset for which the trustee establishes a

23  reserve for depreciation under s. 738.703.

24         (2)  A trustee shall allocate to income 10 percent of

25  the receipts from a liquidating asset and the balance to

26  principal.

27         738.604  Minerals, water, and other natural

28  resources.--

29         (1)  To the extent a trustee accounts for receipts from

30  an interest in minerals or other natural resources pursuant to

31

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  1  this section, the trustee shall allocate such receipts as

  2  follows:

  3         (a)  If received as nominal delay rental or nominal

  4  annual rent on a lease, a receipt shall be allocated to

  5  income.

  6         (b)  If received from a production payment, a receipt

  7  shall be allocated to income if and to the extent the

  8  agreement creating the production payment provides a factor

  9  for interest or its equivalent.  The balance shall be

10  allocated to principal.

11         (c)  If an amount received as a royalty, shut-in-well

12  payment, take-or-pay payment, bonus, or delay rental is more

13  than nominal, 90 percent shall be allocated to principal and

14  the balance to income.

15         (d)  If an amount is received from a working interest

16  or any other interest not provided for in paragraph (a),

17  paragraph (b), or paragraph (c), 90 percent of the net amount

18  received shall be allocated to principal and the balance to

19  income.

20         (2)  An amount received on account of an interest in

21  water that is renewable shall be allocated to income.  If the

22  water is not renewable, 90 percent of the amount shall be

23  allocated to principal and the balance to income.

24         (3)  This chapter applies whether or not a decedent or

25  donor was extracting minerals, water, or other natural

26  resources before the interest became subject to the trust.

27         (4)  If a trust owns an interest in minerals, water, or

28  other natural resources on January 1, 2003, the trustee may

29  allocate receipts from the interest as provided in this

30  chapter or in the manner used by the trustee before January 1,

31  2003.  If the trust acquires an interest in minerals, water,

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  1  or other natural resources after January 1, 2003, the trustee

  2  shall allocate receipts from the interest as provided in this

  3  chapter.

  4         738.605  Timber.--

  5         (1)  To the extent a trustee accounts for receipts from

  6  the sale of timber and related products pursuant to this

  7  section, the trustee shall allocate the net receipts:

  8         (a)  To income to the extent the amount of timber

  9  removed from the land does not exceed the rate of growth of

10  the timber during the accounting periods in which a

11  beneficiary has a mandatory income interest;

12         (b)  To principal to the extent the amount of timber

13  removed from the land exceeds the rate of growth of the timber

14  or the net receipts are from the sale of standing timber;

15         (c)  To or between income and principal if the net

16  receipts are from the lease of timberland or from a contract

17  to cut timber from land owned by a trust by determining the

18  amount of timber removed from the land under the lease or

19  contract and applying the rules in paragraphs (a) and (b); or

20         (d)  To principal to the extent advance payments,

21  bonuses, and other payments are not allocated pursuant to

22  paragraph (a), paragraph (b), or paragraph (c).

23         (2)  In determining net receipts to be allocated

24  pursuant to subsection (1), a trustee shall deduct and

25  transfer to principal a reasonable amount for depletion.

26         (3)  This chapter applies whether or not a decedent or

27  transferor was harvesting timber from the property before the

28  property became subject to the trust.

29         (4)  If a trust owns an interest in timberland on

30  January 1, 2003, the trustee may allocate net receipts from

31  the sale of timber and related products as provided in this

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  1  chapter or in the manner used by the trustee before January 1,

  2  2003.  If the trust acquires an interest in timberland after

  3  January 1, 2003, the trustee shall allocate net receipts from

  4  the sale of timber and related products as provided in this

  5  chapter.

  6         738.606  Property not productive of income.--

  7         (1)  If a marital deduction is allowed for all or part

  8  of a trust the income of which is required to be distributed

  9  to the grantor's spouse and the assets of which consist

10  substantially of property that does not provide the spouse

11  with sufficient income from or use of the trust assets, and if

12  the amounts the trustee transfers from principal to income

13  under s. 738.104 and distributes to the spouse from principal

14  pursuant to the terms of the trust are insufficient to provide

15  the spouse with the beneficial enjoyment required to obtain

16  the marital deduction, the spouse may require the trustee to

17  make property productive of income, convert property within a

18  reasonable time, or exercise the power conferred by ss.

19  738.104 and 738.1041. The trustee may decide which action or

20  combination of actions to take.

21         (2)  In cases not governed by subsection (1), proceeds

22  from the sale or other disposition of an asset are principal

23  without regard to the amount of income the asset produces

24  during any accounting period.

25         738.607  Derivatives and options.--

26         (1)  For purposes of this section, "derivative" means a

27  contract or financial instrument or a combination of contracts

28  and financial instruments which gives a trust the right or

29  obligation to participate in some or all changes in the price

30  of a tangible or intangible asset or group of assets, or

31

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  1  changes in a rate, an index of prices or rates, or other

  2  market indicator for an asset or a group of assets.

  3         (2)  To the extent a trustee does not account under s.

  4  738.403 for transactions in derivatives, the trustee shall

  5  allocate to principal receipts from and disbursements made in

  6  connection with those transactions.

  7         (3)  If a trustee grants an option to buy property from

  8  the trust whether or not the trust owns the property when the

  9  option is granted, grants an option that permits another

10  person to sell property to the trust, or acquires an option to

11  buy property for the trust or an option to sell an asset owned

12  by the trust, and the trustee or other owner of the asset is

13  required to deliver the asset if the option is exercised, an

14  amount received for granting the option shall be allocated to

15  principal.  An amount paid to acquire the option shall be paid

16  from principal.  A gain or loss realized upon the exercise of

17  an option, including an option granted to a grantor of the

18  trust for services rendered, shall be allocated to principal.

19         738.608  Asset-backed securities.--

20         (1)  For purposes of this section, "asset-backed

21  security" means an asset the value of which is based upon the

22  right given the owner to receive distributions from the

23  proceeds of financial assets that provide collateral for the

24  security.  The term includes an asset that gives the owner the

25  right to receive from the collateral financial assets only the

26  interest or other current return or only the proceeds other

27  than interest or current return.  The term does not include an

28  asset to which s. 738.401 or s. 738.602 applies.

29         (2)  If a trust receives a payment from interest or

30  other current return and from other proceeds of the collateral

31  financial assets, the trustee shall allocate to income the

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  1  portion of the payment which the payor identifies as being

  2  from interest or other current return and shall allocate the

  3  balance of the payment to principal.

  4         (3)  If a trust receives one or more payments in

  5  exchange for the trust's entire interest in an asset-backed

  6  security during a single accounting period, the trustee shall

  7  allocate the payments to principal.  If a payment is one of a

  8  series of payments that will result in the liquidation of the

  9  trust's interest in the security over more than a single

10  accounting period, the trustee shall allocate 10 percent of

11  the payment to income and the balance to principal.

12         738.701  Disbursements from income.--A trustee shall

13  make the following disbursements from income to the extent

14  they are not disbursements to which s. 738.201(2)(a) or (c)

15  applies:

16         (1)  One-half of the regular compensation of the

17  trustee and of any person providing investment advisory or

18  custodial services to the trustee.

19         (2)  One-half of all expenses for accountings, judicial

20  proceedings, or other matters that involve both the income and

21  remainder interests.

22         (3)  All of the other ordinary expenses incurred in

23  connection with the administration, management, or

24  preservation of trust property and the distribution of income,

25  including interest, ordinary repairs, regularly recurring

26  taxes assessed against principal, and expenses of a proceeding

27  or other matter that concerns primarily the income interest.

28         (4)  Recurring premiums on insurance covering the loss

29  of a principal asset or the loss of income from or use of the

30  asset.

31         738.702  Disbursements from principal.--

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  1         (1)  A trustee shall make the following disbursements

  2  from principal:

  3         (a)  The remaining one-half of the disbursements

  4  described in s. 738.701(1) and (2).

  5         (b)  All of the trustee's compensation calculated on

  6  principal as a fee for acceptance, distribution, or

  7  termination and disbursements made to prepare property for

  8  sale.

  9         (c)  Payments on the principal of a trust debt.

10         (d)  Expenses of a proceeding that concerns primarily

11  principal, including a proceeding to construe the trust or to

12  protect the trust or its property.

13         (e)  Premiums paid on a policy of insurance not

14  described in s. 738.701(4) of which the trust is the owner and

15  beneficiary.

16         (f)  Estate, inheritance, and other transfer taxes,

17  including penalties, apportioned to the trust.

18         (g)  Disbursements related to environmental matters,

19  including reclamation, assessing environmental conditions,

20  remedying and removing environmental contamination, monitoring

21  remedial activities and the release of substances, preventing

22  future releases of substances, collecting amounts from persons

23  liable or potentially liable for the costs of such activities,

24  penalties imposed under environmental laws or regulations and

25  other payments made to comply with those laws or regulations,

26  statutory or common law claims by third parties, and defending

27  claims based on environmental matters.

28         (h)  Payments representing extraordinary repairs or

29  expenses incurred in making a capital improvement to

30  principal, including special assessments; however, a trustee

31

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  1  may establish an allowance for depreciation out of income to

  2  the extent permitted by s. 738.703.

  3         (2)  If a principal asset is encumbered with an

  4  obligation that requires income from that asset to be paid

  5  directly to the creditor, the trustee shall transfer from

  6  principal to income an amount equal to the income paid to the

  7  creditor in reduction of the principal balance of the

  8  obligation.

  9         738.703  Transfers from income to principal for

10  depreciation.--

11         (1)  For purposes of this section, "depreciation" means

12  a reduction in value due to wear, tear, decay, corrosion, or

13  gradual obsolescence of a fixed asset having a useful life of

14  more than 1 year.

15         (2)  A trustee may transfer to principal a reasonable

16  amount of the net cash receipts from a principal asset that is

17  subject to depreciation but may not transfer any amount for

18  depreciation:

19         (a)  Of that portion of real property used or available

20  for use by a beneficiary as a residence or of tangible

21  personal property held or made available for the personal use

22  or enjoyment of a beneficiary;

23         (b)  During the administration of a decedent's estate;

24  or

25         (c)  Under this section if the trustee is accounting

26  under s. 738.403 for the business or activity in which the

27  asset is used.

28         (3)  The amount of depreciation taken for tax purposes

29  with respect to an asset shall be presumed to be a reasonable

30  amount of depreciation.  An amount taken for depreciation

31

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  1  shall not be considered unreasonable solely because it is

  2  greater or less than the amount taken for tax purposes.

  3         (4)  An amount transferred to principal need not be

  4  held as a separate fund.

  5         738.704  Transfers from income to reimburse

  6  principal.--

  7         (1)  If a trustee makes or expects to make a principal

  8  disbursement described in this section, the trustee may

  9  transfer an appropriate amount from income to principal in one

10  or more accounting periods to reimburse principal or to

11  provide a reserve for future principal disbursements.

12         (2)  Principal disbursements to which subsection (1)

13  applies include the following, but only to the extent the

14  trustee has not been and does not expect to be reimbursed by a

15  third party:

16         (a)  An amount chargeable to income but paid from

17  principal because the amount is unusually large.

18         (b)  Disbursements made to prepare property for rental,

19  including tenant allowances, leasehold improvements, and

20  broker's commissions.

21         (c)  Disbursements described in s. 738.702(1)(g).

22         (3)  If the asset the ownership of which gives rise to

23  the disbursements becomes subject to a successive income

24  interest after an income interest ends, a trustee may continue

25  to transfer amounts from income to principal as provided in

26  subsection (1).

27         (4)  To the extent principal cash is not sufficient to

28  pay the principal balance of payments due on mortgaged

29  property, income may be applied to such payment in order to

30  avoid a default on any mortgage or security interest securing

31  the property.  Income shall be reimbursed for such payments

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  1  out of the first available principal cash.  If the asset the

  2  ownership of which gives rise to the disbursements described

  3  in this subsection becomes subject to a successive income

  4  interest after an income interest ends, all rights of the

  5  initial income interest shall lapse, and amounts remaining due

  6  from principal shall not be a lien on the assets of the trust.

  7         738.705  Income taxes.--

  8         (1)  A tax required to be paid by a trustee based on

  9  receipts allocated to income shall be paid from income.

10         (2)  A tax required to be paid by a trustee based on

11  receipts allocated to principal shall be paid from principal,

12  even if the tax is called an income tax by the taxing

13  authority.

14         (3)  A tax required to be paid by a trustee on the

15  trust's share of an entity's taxable income shall be paid

16  proportionately:

17         (a)  From income to the extent receipts from the entity

18  are allocated to income; and

19         (b)  From principal to the extent:

20         1.  Receipts from the entity are allocated to

21  principal; and

22         2.  The trust's share of the entity's taxable income

23  exceeds the total receipts described in paragraph (a) and

24  subparagraph 1.

25         (4)  For purposes of this section, receipts allocated

26  to principal or income shall be reduced by the amount

27  distributed to a beneficiary from principal or income for

28  which the trust receives a deduction in calculating the tax.

29         738.706  Adjustments between principal and income

30  because of taxes.--

31

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  1         (1)  A fiduciary may make adjustments between principal

  2  and income to offset the shifting of economic interests or tax

  3  benefits between income beneficiaries and remainder

  4  beneficiaries which arise from:

  5         (a)  Elections and decisions, other than those

  6  described in paragraph (b), that the fiduciary makes from time

  7  to time regarding tax matters;

  8         (b)  An income tax or any other tax that is imposed

  9  upon the fiduciary or a beneficiary as a result of a

10  transaction involving or a distribution from the estate or

11  trust; or

12         (c)  The ownership by an estate or trust of an interest

13  in an entity whose taxable income, whether or not distributed,

14  is includable in the taxable income of the estate, trust, or a

15  beneficiary.

16         (2)  If the amount of an estate tax marital deduction

17  or charitable contribution deduction is reduced because a

18  fiduciary deducts an amount paid from principal for income tax

19  purposes instead of deducting such amount for estate tax

20  purposes, and as a result estate taxes paid from principal are

21  increased and income taxes paid by an estate, trust, or

22  beneficiary are decreased, each estate, trust, or beneficiary

23  that benefits from the decrease in income tax shall reimburse

24  the principal from which the increase in estate tax is paid.

25  The total reimbursement shall equal the increase in the estate

26  tax to the extent the principal used to pay the increase would

27  have qualified for a marital deduction or charitable

28  contribution deduction but for the payment. The proportionate

29  share of the reimbursement for each estate, trust, or

30  beneficiary whose income taxes are reduced shall be the same

31  as such estate's, trust's, or beneficiary's proportionate

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  1  share of the total decrease in income tax.  An estate or trust

  2  shall reimburse principal from income.

  3         738.801  Application with respect to apportionment of

  4  expenses; improvements.--

  5         (1)  The provisions of ss. 738.701-738.705 so far as

  6  applicable and excepting those dealing with costs of, or

  7  assessments for, improvements to property, shall govern the

  8  apportionment of expenses between tenants and remaindermen

  9  when no trust has been created, subject to any agreement of

10  the parties or specific direction of the taxing or other

11  statutes, but when either tenant or remainderman has incurred

12  an expense for the benefit of his or her own estate without

13  consent or agreement of the other, he or she shall pay such

14  expense in full.

15         (2)  Subject to the exceptions stated in subsection

16  (1), the cost of, or special taxes or assessments for, an

17  improvement representing an addition of value to property

18  forming part of the principal shall be paid by the tenant when

19  the improvement is not reasonably expected to outlast the

20  estate of the tenant. In all other cases a part only shall be

21  paid by the tenant, while the remainder shall be paid by the

22  remainderman. The part payable by the tenant shall be

23  ascertainable by taking that percentage of the total that is

24  found by dividing the present value of the tenant's estate by

25  the present value of an estate of the same form as that of the

26  tenant except that it is limited for a period corresponding to

27  the reasonably expected duration of the improvement. The

28  computation of present values of the estates shall be made on

29  the expectancy basis set forth in the official mortality

30  tables, and no other evidence of duration or expectancy shall

31  be considered.

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  1         738.802  Uniformity of application and

  2  construction.--In applying and construing this act,

  3  consideration shall be given to the need to promote uniformity

  4  of the law with respect to the act's subject matter among

  5  states that enact such act.

  6         738.803  Severability.--If any provision of this

  7  chapter or its application to any person or circumstance is

  8  held invalid, the invalidity shall not affect other provisions

  9  or applications of this chapter which can be given effect

10  without the invalid provision or application and to this end

11  the provisions of this chapter are severable.

12         738.804  Application.--Except as provided in the trust

13  instrument, the will, or this chapter, this chapter shall

14  apply to any receipt or expense received or incurred and any

15  disbursement made after January 1, 2003, by any trust or

16  decedent's estate, whether established before or after January

17  1, 2003, and whether the asset involved was acquired by the

18  trustee or personal representative before or after January 1,

19  2003. Receipts or expenses received or incurred and

20  disbursements made before January 1, 2003, shall be governed

21  by the law of this state in effect at the time of the event,

22  except as otherwise expressly provided in the will or terms of

23  the trust or in this chapter.

24         Section 2.  Sections 738.01, 738.02, 738.03, 738.04,

25  738.05, 738.06, 738.07, 738.08, 738.09, 738.10, 738.11,

26  738.12, 738.13, 738.14, and 738.15, Florida Statutes, are

27  repealed.

28         Section 3.  This act shall take effect January 1, 2003.

29

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                          CS for SB 1166

  3

  4  Makes technical and clarifying changes.

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