HB 1749 2003
1	A bill to be entitled
2	An act relating to probate and trusts and statutes of
3	limitation; amending s. 731.103, F.S.; providing that fact
4	that missing person was subject to a specific peril of
5	death is evidence for a finding of a presumptive death;
6	amending ss. 731.201 and 731.303, F.S.; revising the
7	conflict of interest standard in the definitions of
8	“beneficiary,” “devisee,” “interested person,” and in
9	judicial orders binding the trustee; amending s. 732.217,
10	F.S.; eliminating requirement that property be homestead
11	property to be excepted from the application of the
12	Florida Uniform Disposition of Community Property Rights
13	at Death Act; amending s. 732.502, F.S.; providing that
14	military testamentary instruments executed pursuant to
15	federal law are valid in this state; amending s. 732.603,
16	F.S.; revising language with respect to antilapse
17	provisions; amending s. 733.205, F.S.; revising language
18	with respect to the probate of notarial wills; amending s.
19	733.212, F.S.; revising language with respect to the
20	notice of administration; amending s. 733.2121, F.S.;
21	revising the time in which notice to creditors must be
22	served; amending s. 733.608, F.S.; revising language with
23	respect to the general power of the personal
24	representative; amending s. 733.609, F.S.; revising
25	language with respect to awarding taxable costs and
26	attorney’s fees with respect to improper exercise of power
27	or the breech of fiduciary duty; amending s. 734.1025,
28	F.S., to conform to the amendment to s. 732.502, F.S.;
29	amending s. 735.2063, F.S.; revising language with respect
30	to notice to creditors; amending s. 737.106, F.S.;
31	revising language with respect to revocable trust prior to
32	dissolution of marriage; amending s. 737.2035, F.S.;
33	revising language with respect to costs and attorney’s
34	fees in trust proceedings; amending s. 737.204, F.S.;
35	revising language with respect to proceedings for review
36	of employment of agents and review of compensation of
37	trustee and employees of trust; amending s. 737.404, F.S.;
38	revising language with respect to powers exercisable by
39	joint trustees; creating s. 737.6035, F.S.; providing
40	antilapse provision with respect to inter vivos trusts
41	under certain circumstances; amending s. 737.627, F.S.;
42	revising language with respect to costs and attorney’s
43	fees; amending s. 95.031, F.S.; including constructive
44	fraud in actions based upon fraud for statute of
45	limitations computation; providing such amendments are
46	remedial in nature and have retrospective effect;
47	reenacting ss. 709.08 and 717.1243, F.S., to incorporate
48	by reference the amendment of s. 731.201, F.S.; reenacting
49	ss. 660.46, 731.302, 737.303, and 737.307, F.S., to
50	incorporate by reference the amendment to s. 731.303,
51	F.S.; reenacting s. 382.025, F.S., to incorporate by
52	reference the amendment to s. 732.502, F.S.; reenacting
53	ss. 732.604 and 732.801, F.S., to incorporate by reference
54	the amendment to s. 732.603, F.S.; reenacting s. 733.701,
55	F.S., to incorporate by reference the amendment to s.
56	733.2121, F.S.; reenacting s. 63.182, F.S., to incorporate
57	by reference the amendment to s. 95.031, F.S.; providing
58	an effective date.
59
60	Be It Enacted by the Legislature of the State of Florida:
61
62	Section 1. Subsection (3) of section 731.103, Florida
63	Statutes, is amended to read:
64	731.103 Evidence as to death or status.--In proceedings
65	under this code, the rules of evidence in civil actions are
66	applicable unless specifically changed by the code. The
67	following additional rules relating to determination of death
68	and status are applicable:
69	(3) A person who is absent from the place of his or her
70	last known domicile for a continuous period of 5 years and whose
71	absence is not satisfactorily explained after diligent search
72	and inquiry is presumed to be dead. The person's death is
73	presumed to have occurred at the end of the period unless there
74	is evidence establishing that death occurred earlier. Evidence
75	showing that the absent person was exposed to a specific peril
76	of death may be a sufficient basis for the court determining at
77	any time after such exposure that he or she died less than 5
78	years after the date on which his or her absence commenced. A
79	petition for this determination shall be filed in the county in
80	Florida where the decedent maintained his or her domicile or in
81	any county of this state if the decedent was not a resident of
82	Florida at the time his or her absence commenced.
83	Section 2. Subsections (2), (9), and (21) of section
84	731.201, Florida Statutes, are amended to read:
85	731.201 General definitions.--Subject to additional
86	definitions in subsequent chapters that are applicable to
87	specific chapters or parts, and unless the context otherwise
88	requires, in this code, in s. 409.9101, and in chapters 737,
89	738, and 744:
90	(2) “Beneficiary" means heir at law in an intestate estate
91	and devisee in a testate estate. The term "beneficiary" does not
92	apply to an heir at law or a devisee after that person's
93	interest in the estate has been satisfied. In the case of a
94	devise to an existing trust or trustee, or to a trust or trustee
95	described by will, in the absence of a conflict of interest of
96	the trust, the trustee is a beneficiary of the estate. Except as
97	otherwise provided in this subsection, the beneficiary of the
98	trust is not a beneficiary of the estate of which that trust or
99	the trustee of that trust is a beneficiary. However, if each
100	trustee is also a personal representative of the estate, the
101	beneficiary or beneficiaries of the trust as defined in s.
102	737.303(4)(b) shall be regarded as a beneficiary of the estate
103	An owner of a beneficial interest in the trust is a beneficiary
104	of the trust and is, in the absence of a conflict of interest of
105	the trust, not a beneficiary of the estate.
106	(9) “Devisee" means a person designated in a will or trust
107	to receive a devise. Except as otherwise provided in this
108	subsection,in the case of a devise to an existing trust or
109	trustee, or to a trust ortrustee of a trust described by will,
110	the trust or trustee, rather than the beneficiaries of the
111	trust, is the devisee. However, if each trustee is also a
112	personal representative of the estate, the beneficiary or
113	beneficiaries of the trust as defined in s. 737.303(4)(b) shall
114	be regarded as a deviseeThe beneficiaries of the trust are not
115	devisees.
116	(21) “Interested person" means any person who may
117	reasonably be expected to be affected by the outcome of the
118	particular proceeding involved. In any proceeding affecting the
119	estate or the rights of a beneficiary in the estate, the
120	personal representative of the estate shall be deemed to be an
121	interested person. In any proceeding affecting the expenses of
122	the administration and obligations of a decedent's estate, or
123	anyclaims described in s. 733.702(1),the trustee of a trust
124	described in s. 733.707(3) is an interested person in the
125	administration of the grantor's estate. The term does not
126	include a beneficiary who has received complete distribution.
127	The meaning, as it relates to particular persons, may vary from
128	time to time and must be determined according to the particular
129	purpose of, and matter involved in, any proceedings.
130	Section 3. Section 731.303, Florida Statutes, is amended
131	to read:
132	731.303 Representation.--In the administration of or in
133	judicialproceedings involving estates of decedents or trusts,
134	the following apply:
135	(1) Persons are bound by orders binding others in the
136	following cases:
137	(a) Orders binding the sole holder or all coholders of a
138	power of revocation or a general, special, or limited power of
139	appointment, including one in the form of a power of amendment
140	or revocation to the extent that the power has not become
141	unexercisable in fact, bind all persons to the extent that their
142	interests, as persons who may take by virtue of the exercise or
143	nonexercise of the power, are subject to the power.
144	(b) To the extent there is no conflict of interest between
145	them or among the persons represented:
146	1. Orders binding a guardian of the property bind the
147	ward.
148	2. Orders binding a trustee bind beneficiaries of the
149	trust in proceedings to probate a will, in establishing or
150	adding to a trust, in reviewing the acts or accounts of a prior
151	fiduciary, and in proceedings involving creditors or other third
152	parties. However, for purposes of this section, a conflict of
153	interest shall be deemed to exist when each trustee of a trust
154	that is a beneficiary of the estate is also a personal
155	representative of the estate.
156	3. Orders binding a personal representative bind persons
157	interested in the undistributed assets of a decedent's estate,
158	in actions or proceedings by or against the estate.
159	(c) An unborn or unascertained person, or a minor or any
160	other person under a legal disability, who is not otherwise
161	represented is bound by an order to the extent that person's
162	interest is represented by another party having the same or
163	greater quality of interest in the proceeding.
164	(2) Orders binding a guardian of the person shall not bind
165	the ward.
166	(3) In judicialproceedings involving the administration
167	of estates or trusts, notice is required as follows:
168	(a) Notice as prescribed by lawthe Florida Probate Rules
169	shall be given to every interested person, or to one who can
170	bind the interested person as described in paragraph (1)(a) or
171	paragraph (1)(b). Notice may be given both to the interested
172	person and to another who can bind him or her.
173	(b) Notice is given to unborn or unascertained persons who
174	are not represented pursuant to paragraph (1)(a) or paragraph
175	(1)(b) by giving notice to all known persons whose interests in
176	the proceedings are the same as, or of a greater quality than,
177	those of the unborn or unascertained persons.
178	(4) If the court determines that representation of the
179	interest would otherwise be inadequate, the court may, at any
180	time, appoint a guardian ad litem to represent the interests of
181	an incapacitated person, an unborn or unascertained person, a
182	minor or any other person otherwise under a legal disability, or
183	a person whose identity or address is unknown. If not precluded
184	by conflict of interest, a guardian ad litem may be appointed to
185	represent several persons or interests.
186	(5) When a sole holder or coholder of a general, special,
187	or limited power of appointment, including an exercisable power
188	of amendment or revocation over property in an estate or trust,
189	is bound by:
190	(a) Agreements, waivers, consents, or approvals; or
191	(b) Accounts, trust accountings, or other written reports
192	that adequately disclose matters set forth therein,
193
194	then all persons who may take by virtue of, and whose interests
195	are subject to, the exercise or nonexercise of the power are
196	also bound, but only to the extent of their interests which
197	could otherwise be affected by the exercise or nonexercise of
198	the power.
199	Section 4. Subsection (2) of section 732.217, Florida
200	Statutes, is amended to read:
201	732.217 Application.--Sections 732.216-732.228 apply to
202	the disposition at death of the following property acquired by a
203	married person:
204	(2) Real property, except homestead andreal property held
205	as tenants by the entirety, which is located in this state, and
206	which:
207	(a) Was acquired with the rents, issues, or income of, the
208	proceeds from, or in exchange for, property acquired as, or
209	which became and remained, community property under the laws of
210	another jurisdiction; or
211	(b) Is traceable to that community property.
212	Section 5. Subsections (3) and (4) of section 732.502,
213	Florida Statutes, are renumbered as subsections (4) and (5),
214	respectively, and a new subsection (3) is added to said section,
215	to read:
216	732.502 Execution of wills.--Every will must be in writing
217	and executed as follows:
218	(3) Any will executed as a military testamentary
219	instrument in accordance with Section 1044d of Title 10 United
220	States Code, Chapter 53, by a person who is eligible for
221	military legal assistance is valid as a will in this state.
222	Section 6. Paragraph (c) of subsection (1) and paragraph
223	(c) of subsection (2) of section 732.603, Florida Statutes, are
224	amended to read:
225	732.603 Antilapse; deceased devisee; class gifts.--Unless
226	a contrary intention appears in the will:
227	(1) If a devisee or a beneficiary of a trust created by a
228	will who is a grandparent, or a lineal descendant of a
229	grandparent, of the testator:
230	(c) Is required by the will or by operation of lawto be
231	treated as having predeceased the testator,
232
233	then the descendants of the devisee or beneficiary take per
234	stirpes in place of the deceased devisee or beneficiary. A
235	person who would have been a devisee under a class gift if that
236	person had survived the testator shall be a devisee for purposes
237	of this section whether that person died before or after the
238	execution of the will.
239	(2) If a devisee or a beneficiary of a trust created by a
240	will who is not a grandparent, or a descendant of a grandparent,
241	of the testator:
242	(c) Is required by the will or by operation of lawto be
243	treated as having predeceased the testator,
244
245	then the testamentary disposition to the devisee or beneficiary
246	shall lapse unless an intention to substitute another appears in
247	the will.
248	Section 7. Subsection (1) of section 733.205, Florida
249	Statutes, is amended to read:
250	733.205 Probate of notarial will.--
251	(1) When a copy of a notarial will in the possession of a
252	notary entitled to its custody in a foreign state or country,
253	the laws of which state or country require that the will remain
254	in the custody of the notary, duly authenticated by the notary,
255	whose official position, signature, and seal of office are
256	further authenticated by an American consul, vice consul, or
257	other American consular officer within whose jurisdiction the
258	notary is a resident, or whose official position, signature, and
259	seal of office have been authenticated according to the
260	requirements of the Hague Convention of 1961,is presented to
261	the court, it may be admitted to probate if the original could
262	have been admitted to probate in this state.
263	Section 8. Paragraph (c) of subsection (1) of section
264	733.212, Florida Statutes, is amended to read:
265	733.212 Notice of administration; filing of objections.--
266	(1) The personal representative shall promptly serve a
267	copy of the notice of administration on the following persons
268	who are known to the personal representative:
269	(c) The trustee of any trust described in s. 733.707(3)
270	and each beneficiary of the trust as defined in s.
271	737.303(4)(b), if each trustee is also a personal representative
272	of the estate; and
273
274	in the manner provided for service of formal notice, unless
275	served under s. 733.2123. The personal representative may
276	similarly serve a copy of the notice on any devisees under a
277	known prior will or heirs or others who claim or may claim an
278	interest in the estate.
279	Section 9. Subsection (1) of section 733.2121, Florida
280	Statutes, is amended to read:
281	733.2121 Notice to creditors; filing of claims.--
282	(1) Unless creditors' claims are otherwise barred by s.
283	733.710, the personal representative shall promptly publish a
284	notice to creditors. The notice shall contain the name of the
285	decedent, the file number of the estate, the designation and
286	address of the court in which the proceedings are pending, the
287	name and address of the personal representative, the name and
288	address of the personal representative's attorney, and the date
289	of first publication. The notice shall state that creditors must
290	file claims against the estate with the court duringwithinthe
291	time periods set forth in s.ss. 733.702 and 733.710, or be
292	forever barred.
293	Section 10. Subsection (2) of section 733.608, Florida
294	Statutes, is amended, and subsections (3)-(13) are added to said
295	section, to read:
296	733.608 General power of the personal representative.--
297	(2) If property that reasonably appears to the personal
298	representative to be protected homestead is not occupied byin
299	the possession ofa person who appears to have an interest in
300	the property, the personal representative is authorized, but not
301	required, to take possession of that property for the limited
302	purpose of preserving, insuring, and protecting it for the
303	person having an interest in the propertyheir or devisee,
304	pending a determination of its homestead status. If the personal
305	representative takes possession of that property, any rents and
306	revenues may be collected by the personal representative for the
307	account of the heir or devisee, but the personal representative
308	shall have no duty to rent or otherwise make the property
309	productive.
310	(3) If the personal representative expends funds or incurs
311	obligations to preserve, maintain, insure, or protect the
312	property referenced in subsection (2), the personal
313	representative shall be entitled to a lien on that property and
314	its revenues to secure repayment of those expenditures and
315	obligations incurred. These expenditures and obligations
316	incurred, including, but not limited to, fees and costs, shall
317	constitute a debt owed to the personal representative that is
318	charged against and which may be secured by a lien on the
319	protected homestead, as provided in this section. The debt shall
320	include any amounts paid for these purposes after the decedent’s
321	death and prior to the personal representative’s appointment to
322	the extent later ratified by the personal representative in the
323	court proceeding provided for in this section.
324	(a) On the petition of the personal representative or any
325	interested person, the court having jurisdiction of the
326	administration of the decedent’s estate shall adjudicate the
327	amount of the debt after formal notice to the persons appearing
328	to have an interest in the property.
329	(b) The persons having an interest in the protected
330	homestead shall have no personal liability for the repayment of
331	the above noted debt. The personal representative may enforce
332	payment of the debt through any of the following methods:
333	1. By foreclosure of the lien as provided in this section;
334	2. By offset of the debt against any other property in the
335	personal representative’s possession that otherwise would be
336	distributable to any person having an interest in the protected
337	homestead, but only to the extent of the fraction of the total
338	debt owed to the personal representative the numerator of which
339	is the value of that person’s interest in the protected
340	homestead and the denominator of which is the total value of the
341	protected homestead; or
342	3. By offset of the debt against the revenues from the
343	protected homestead received by the personal representative.
344	(4) The personal representative’s lien shall attach to the
345	property and take priority as of the date and time a notice of
346	that lien is recorded in the official records of the county
347	where that property is located and the lien may secure
348	expenditures and obligations incurred, including, but not
349	limited to, fees and costs made before or after recording the
350	notice. The notice of lien may be recorded prior to the
351	adjudication of the amount of the debt. The notice of lien also
352	shall be filed in the probate proceeding but failure to do so
353	shall not affect the validity of the lien. A copy of the notice
354	of lien shall be served by formal notice upon each person
355	appearing to have an interest in the property. The notice of
356	lien shall state:
357	(a) The name and address of the personal representative
358	and the personal representative’s attorney;
359	(b) The legal description of the property;
360	(c) The name of the decedent and also, to the extent known
361	to the personal representative, the name and address of each
362	person appearing to have an interest in the property; and
363	(d) That the personal representative has expended or is
364	obligated to expend funds to preserve, maintain, insure, and
365	protect the property and that the lien stands as security for
366	recovery of those expenditures and obligations incurred,
367	including, but not limited to, fees and costs.
368
369	Substantial compliance with the foregoing provisions shall
370	render the notice in comportment with this section.
371	(5) The lien shall terminate upon the earliest of:
372	(a) Recording a satisfaction or release signed by the
373	personal representative in the official records of the county
374	where the property is located;
375	(b) The discharge of the personal representative when the
376	estate administration is complete;
377	(c) One year from the recording of the lien in the
378	official records unless a proceeding to determine the debt or
379	enforce the lien has been filed; or
380	(d) The entry of an order releasing the lien.
381	(6) Within 14 days after receipt of the written request of
382	any interested person, the personal representative shall deliver
383	to the requesting person at a place designated in the written
384	request an estoppel letter setting forth the unpaid balance of
385	the debt secured by the lien referred to in this section. After
386	complete satisfaction of the debt secured by the lien, the
387	personal representative shall record within 30 days after
388	complete payment, a satisfaction of the lien in the official
389	records of the county where the property is located. If a
390	judicial proceeding is necessary to compel compliance with the
391	provisions of this subsection, the prevailing party shall be
392	entitled to an award of attorney’s fees and costs.
393	(7) The lien created by this section may be foreclosed in
394	the manner of foreclosing a mortgage under the provisions of
395	chapter 702.
396	(8) In any action for enforcement of the debt described in
397	this section, the court shall award taxable costs as in chancery
398	actions, including reasonable attorney’s fees.
399	(9) A personal representative entitled to recover a debt
400	for expenditures and obligations incurred, including, but not
401	limited to, fees and costs, under this section may be relieved
402	of the duty to enforce collection by an order of the court
403	finding:
404	(a) That the estimated court costs and attorney’s fees in
405	collecting the debt will approximate or exceed the amount of the
406	recovery; or
407	(b) That it is impracticable to enforce collection in view
408	of the improbability of collection.
409	(10) A personal representative shall not be liable for
410	failure to attempt to enforce collection of the debt if the
411	personal representative reasonably believes it would have been
412	economically impracticable.
413	(11) The personal representative shall not be liable for
414	failure to take possession of the protected homestead or to
415	expend funds on its behalf. In the event that the property is
416	determined by the court not to be protected homestead,
417	subsections (2)-(10) shall not apply and any liens previously
418	filed shall be deemed released upon recording of the order in
419	the official records of the county where the property is
420	located.
421	(12) Upon the petition of an interested party to
422	accommodate a sale or the encumbrance of the protected
423	homestead, the court may transfer the lien provided for in this
424	section from the property to the proceeds of the sale or
425	encumbrance by requiring the deposit of the proceeds into a
426	restricted account subject to the lien. The court shall have
427	continuing jurisdiction over the funds deposited. The
428	transferred lien shall attach only to the amount asserted by the
429	personal representative and any proceeds in excess of that
430	amount shall not be subject to the lien or otherwise restricted
431	under this section. Alternatively, the personal representative
432	and the apparent owners of the protected homestead may agree to
433	retain in escrow the amount demanded as reimbursement by the
434	personal representative, to be held there under the continuing
435	jurisdiction of the court pending a final determination of the
436	amount properly reimbursable to the personal representative
437	under this section.
438	(13) This act shall apply to estates of decedents dying
439	after the date on which this act becomes law.
440	Section 11. Section 733.609, Florida Statutes, is amended
441	to read:
442	733.609 Improper exercise of power; breach of fiduciary
443	duty.—-
444	(1)A personal representative's fiduciary duty is the same
445	as the fiduciary duty of a trustee of an express trust, and a
446	personal representative is liable to interested persons for
447	damage or loss resulting from the breach of this duty. In all
448	actions for breach of fiduciary duty or challenging the exercise
449	of or failure to exercise a personal representative's powers,
450	the court shall award taxable costs as in chancery actions,
451	including attorney's fees.
452	(2) When awarding taxable costs, including attorney’s
453	fees, under this section, the court in its discretion may direct
454	payment from a party’s interest, if any, in the estate or enter
455	a judgment which may be satisfied from other property of the
456	party, or both.
457	(3) This section shall apply to all proceedings commenced
458	hereunder after the effective date, without regard to the date
459	of the decedent’s death.
460	Section 12. Subsection (1) of section 734.1025, Florida
461	Statutes, is amended to read:
462	734.1025 Nonresident decedent's testate estate with
463	property not exceeding $50,000 in this state; determination of
464	claims.--
465	(1) When a nonresident decedent dies testate and leaves
466	property subject to administration in this state the gross value
467	of which does not exceed $50,000 at the date of death, the
468	foreign personal representative of the estate before the
469	expiration of 2 years after the decedent's death may file in the
470	circuit court of the county where any property is located an
471	authenticated transcript of so much of the foreign proceedings
472	as will show the will and beneficiaries of the estate, as
473	provided in the Florida Probate Rules. The court shall admit the
474	will and any codicils to probate if they comply with s.
475	732.502(1),or (2), or (3).
476	Section 13. Section 735.2063, Florida Statutes, is amended
477	to read:
478	735.2063 Notice to creditors.--
479	(1) Any person who has obtained an order of summary
480	administration may publish a notice to creditors according to
481	the relevant requirements of s. 733.2121, notifying all persons
482	having claims or demands against the estate of the decedent that
483	an order of summary administration has been entered by the
484	court. The notice shall specify the total value of the estate
485	and the names and addresses of those to whom it has been
486	assigned by the order.
487	(2) If proof of publication of the notice is filed with
488	the court, all claims and demands of creditors against the
489	estate of the decedent who are not known or are notreasonably
490	ascertainable shall be forever barred unless the claims and
491	demands are filed with the court within 3 months after the first
492	publication of the notice.
493	Section 14. Section 737.106, Florida Statutes, is amended
494	to read:
495	737.106 Revocable trust prior to dissolution of
496	marriage.--Unless the trust instrument or the judgment for
497	dissolution of marriage or divorce expressly provides otherwise,
498	if a revocable trust is executed by a husband or wife as settlor
499	prior to annulment of the marriageor entry of a judgment for
500	dissolution of marriage or divorce of settlor from settlor's
501	spouse, then any provision of the trust which affects the
502	settlor's divorced spouse will become void upon annulment of the
503	marriage orentry of the judgment of dissolution of marriage or
504	divorce, and any such trust will be administered and construed
505	as if the settlor's divorced spouse had died on the date of the
506	annulment orupon entry of the judgment for dissolution of
507	marriage or divorce.
508	Section 15. Subsection (2) of section 737.2035, Florida
509	Statutes, is amended to read:
510	737.2035 Costs and attorney's fees in trust proceedings.--
511	(2) Any attorney who has rendered services to a trust may
512	be awarded reasonable compensation from the trust. The attorney
513	mayapply to the court for an order awarding attorney's fees,
514	and, after notice and service upon the trustee and all
515	beneficiaries entitled to an accounting under s. 737.303, the
516	court shall enter its order on the fee application.
517	Section 16. Section 737.204, Florida Statutes, is amended
518	to read:
519	737.204 Proceedings for review of employment of agents and
520	review of compensation of trustee and employees of trust.--
521	(1) After notice to all interested persons, the court may
522	review the propriety of theemployment by a trustee of any
523	person, including any attorney, auditor, investment adviser, or
524	other specialized agent or assistant, and the reasonableness of
525	anythe compensation paid to thatof any person or toso
526	employed and of the compensation determined by the trustee for
527	his or her own services. A person who has received excessive
528	compensation from a trust may be ordered to make a refund of the
529	excess.
530	(2) If the settlor's estate is being probated, and the
531	settlor’s trust or the trustee of the settlor’s trust is a
532	beneficiary under the settlor’s will, the trustee, any person
533	employed by the trusteethe attorney, or any interested person
534	may have the propriety of employment and the reasonableness of
535	the compensation of the trustee or any person employed by the
536	trustee determined in the probate proceeding.
537	(3) The burden of proof of propriety of the employment and
538	the reasonableness of the compensation shall be upon the trustee
539	and the person employed by the trustee. Any person who is
540	determined to have received excessive compensation from a trust
541	for services rendered may be ordered to make appropriate refunds
542	In any proceeding under this section the petitioner shall
543	either:
544	(a) Serve notice on all interested persons in the manner
545	provided for service of formal notice under s. 731.301, together
546	with a notice advising the interested person that an answer to
547	the petition must be filed and served on petitioner within 20
548	days from the service of the petition or the petition may be
549	considered ex parte, and such notice shall be sufficient for the
550	court to acquire jurisdiction for this proceeding over the
551	person receiving formal notice to the extent of the person's
552	interest in the trust; or
553	(b) Obtain jurisdiction over interested persons in any
554	other manner permitted by law.
555	(4) Court proceedings to determine reasonable compensation
556	of a trustee or any person employed by a trustee, if required,
557	are a part of the trust administration process. The costs,
558	including attorney’s fees, of the person assuming the burden of
559	proof of propriety of the employment and reasonableness of the
560	compensation shall be determined by the court and paid from the
561	assets of the trust unless the court finds the compensation paid
562	or requested to be substantially unreasonable. The court shall
563	direct from which part of the trust assets the compensation
564	shall be paidPersons given notice as provided in this section
565	shall be bound by all orders entered on the petition.
566	(5) The court may determine reasonable compensation for a
567	trustee or any person employed by a trustee without receiving
568	expert testimony. Any party may offer expert testimony after
569	notice to interested persons. If expert testimony is offered, a
570	reasonable expert witness fee shall be awarded by the court and
571	paid from the assets of the trust. The court shall direct from
572	which part of the trust assets the fee shall be paid.
573	(6) Persons given notice as provided in this section shall
574	be bound by all orders entered on the petition.
575	(7) In a proceeding pursuant to subsection (2), the
576	petitioner may serve formal notice as provided in the Florida
577	Probate Rules, and such notice shall be sufficient for the court
578	to acquire jurisdiction over the person receiving it to the
579	extent of the person’s interest in the trust.
580	Section 17. Subsection (1) of section 737.404, Florida
581	Statutes, is amended to read:
582	737.404 Powers exercisable by joint trustees; liability.--
583	(1) Any power vested in three or more trustees may be
584	exercised by a majority, but a trustee who has not joined in
585	exercising a power is not liable to the beneficiaries or to
586	others for the consequences of the exercise, and a dissenting
587	trustee is not liable for the consequences of an actionactin
588	which the dissenting trusteehe or shejoins at the direction of
589	the majority of the trustees if the dissent isdissenting
590	trustee expressed his or her dissent in writing to the otherany
591	of his or her cotrustees at or before the time of the action
592	joinder.
593	Section 18. Section 737.6035, Florida Statutes, is created
594	to read:
595	737.6035 Antilapse; deceased trust beneficiary; class
596	gifts.--Unless a contrary intention appears in the inter vivos
597	trust:
598	(1) If a beneficiary of an inter vivos trust who is a
599	grandparent, or a lineal descendant of a grandparent, of the
600	grantor:
601	(a) Is dead at the time of the execution of the inter
602	vivos trust or at the termination of a trust interest created by
603	an inter vivos trust;
604	(b) Fails to survive the grantor; or
605	(c) Is required by the inter vivos trust or by operation
606	of law to be treated as having predeceased the grantor;
607
608	then the descendants of the trust beneficiary take per stirpes
609	in place of the deceased beneficiary. A person who would have
610	been a trust beneficiary under a class gift if that person had
611	survived the grantor shall be a trust beneficiary for purposes
612	of this section regardless of whether that person died before or
613	after the execution of the inter vivos trust.
614	(2) If a trust beneficiary of an inter vivos trust who is
615	not a grandparent, or a descendant of a grandparent, of the
616	grantor:
617	(a) Is dead at the time of the execution of the inter
618	vivos trust or at the termination of a trust interest created in
619	an inter vivos trust;
620	(b) Fails to survive the grantor; or
621	(c) Is required by the inter vivos trust or by operation
622	of law to be treated as having predeceased the grantor;
623
624	then the trust disposition to the trust beneficiary shall lapse
625	unless an intention to substitute another appears in the inter
626	vivos trust.
627	(3) This section shall apply to all inter vivos trusts and
628	amendments to those trusts executed on or after the effective
629	date of this section.
630	Section 19. Section 737.627, Florida Statutes, is amended
631	to read:
632	737.627 Costs and attorney's fees.—-
633	(1) In all actions for breach of fiduciary duty or
634	challenging the proper exercise of, or failure to exercise,a
635	trustee's powers, the court shall award taxable costs as in
636	chancery actions, including attorney's fees.
637	(2) When awarding taxable costs, including attorney’s
638	fees, under this section, the court, in its discretion, may
639	direct payment from a party’s interest, if any, in the trust or
640	enter a judgment which may be satisfied from other property of
641	the party, or both.
642	(3) This section shall apply to all proceedings described
643	in subsection (1) commenced after the effective date of this
644	act, without regard to the date the trust was created or the
645	date of the settlor’s death.
646	Section 20. Paragraph (a) of subsection (2) of section
647	95.031, Florida Statutes, is amended to read:
648	95.031 Computation of time.--Except as provided in
649	subsection (2) and in s. 95.051 and elsewhere in these statutes,
650	the time within which an action shall be begun under any statute
651	of limitations runs from the time the cause of action accrues.
652	(2)(a) An action founded uponfor fraud under s. 95.11(3),
653	including constructive fraud,must be begun within the period
654	prescribed in this chapter, with the period running from the
655	time the facts giving rise to the cause of action were
656	discovered or should have been discovered with the exercise of
657	due diligence, instead of running from any date prescribed
658	elsewhere in s. 95.11(3), but in any event an action for fraud
659	under s. 95.11(3) must be begun within 12 years after the date
660	of the commission of the alleged fraud, regardless of the date
661	the fraud was or should have been discovered.
662	Section 21. The amendments to section 95.031, Florida
663	Statutes, are remedial in nature and shall have retrospective
664	effect.
665	Section 22. For the purpose of incorporating the amendment
666	to section 731.201, Florida Statutes, in references thereto,
667	subsection (8) of section 709.08, Florida Statutes, is reenacted
668	to read:
669	709.08 Durable power of attorney.--
670	(8) STANDARD OF CARE.--Except as otherwise provided in
671	paragraph (4)(e), an attorney in fact is a fiduciary who must
672	observe the standards of care applicable to trustees as
673	described in s. 737.302. The attorney in fact is not liable to
674	third parties for any act pursuant to the durable power of
675	attorney if the act was authorized at the time. If the exercise
676	of the power is improper, the attorney in fact is liable to
677	interested persons as described in s. 731.201 for damage or loss
678	resulting from a breach of fiduciary duty by the attorney in
679	fact to the same extent as the trustee of an express trust.
680	Section 23. For the purpose of incorporating the amendment
681	to section 731.201, Florida Statutes, in references thereto,
682	subsection (1) of section 717.1243, Florida Statutes, is
683	reenacted to read:
684	717.1243 Small estate accounts.--
685	(1) A claim for unclaimed property made by a beneficiary,
686	as defined in s. 731.201, of a deceased owner need not be
687	accompanied by an order of a probate court if the claimant files
688	with the department an affidavit, signed by all beneficiaries,
689	stating that all the beneficiaries have amicably agreed among
690	themselves upon a division of the estate and that all funeral
691	expenses, expenses of the last illness, and any other lawful
692	claims have been paid. If the owner died testate, the claim
693	shall be accompanied by a copy of the will.
694	Section 24. For the purpose of incorporating the amendment
695	to section 731.303, Florida Statutes, in references thereto,
696	subsections (3) and (10) of section 660.46, Florida Statutes,
697	are reenacted to read:
698	660.46 Substitution of fiduciaries.--
699	(3) Unless a waiver or consent shall be filed in the
700	proceedings as provided in subsection (4), the provisions of s.
701	731.301(1) and (2) shall apply with respect to notice of the
702	proceedings to all persons who are then cofiduciaries with the
703	original fiduciary, other than a person joining as a petitioner
704	in the proceedings; to all persons named in the governing
705	instrument as substitutes or successors to the fiduciary
706	capacity of the original fiduciary; to the persons then living
707	who are entitled under the governing instrument to appoint a
708	substitute or successor to act in the fiduciary capacity of the
709	original fiduciary; to all vested beneficiaries of the fiduciary
710	account; and to all then-living originators of the governing
711	instrument. Unless a waiver or consent shall be filed in the
712	proceedings as provided in subsection (4), the provisions of s.
713	731.301 shall apply with respect to notice to all contingent
714	beneficiaries of the fiduciary account. Only the persons or
715	classes of persons described in the foregoing provisions of this
716	subsection shall be deemed to be interested persons for the
717	purposes of this section and the proceedings and notices
718	provided for in this section; and the provisions of ss.
719	731.301(3) and 731.303(3), (4), and (5), relating to notice
720	requirements, the effect of notice, and representation of
721	interests, shall apply to the proceedings provided for in this
722	section.
723	(10) A beneficiary has received a final trust disclosure
724	document or a limitation notice if, when the beneficiary is an
725	adult, it is received by him or her or if, when the beneficiary
726	is a minor or a disabled person, it is received by his or her
727	representative as defined in s. 731.303.
728	Section 25. For the purpose of incorporating the amendment
729	to section 731.303, Florida Statutes, in references thereto,
730	section 731.302, Florida Statutes, is reenacted to read:
731	731.302 Waiver and consent by interested
732	person.--Subsequent to the filing of a petition for
733	administration, an interested person, including a guardian ad
734	litem, administrator ad litem, guardian of the property,
735	personal representative, trustee, or other fiduciary, or a sole
736	holder or all coholders of a power of revocation or a power of
737	appointment, may waive, to the extent of that person's interest
738	or the interest which that person represents, subject to the
739	provisions of ss. 731.303 and 733.604, any right or notice or
740	the filing of any document, exhibit, or schedule required to be
741	filed and may consent to any action or proceeding which may be
742	required or permitted by this code.
743	Section 26. For the purpose of incorporating the amendment
744	to section 731.303, Florida Statutes, in references thereto,
745	paragraphs (d) and (e) of subsection (4) of section 737.303,
746	Florida Statutes, are reenacted to read:
747	737.303 Duty to inform and account to beneficiaries.--The
748	trustee shall keep the beneficiaries of the trust reasonably
749	informed of the trust and its administration. The trustee's duty
750	to inform and account includes, but is not limited to, the
751	following:
752	(4)
753	(d) A beneficiary or the beneficiary's representative, as
754	defined in s. 731.303, may waive, in writing, the trustee's duty
755	to account under paragraph (a).
756	(e) All rights provided a beneficiary under this section
757	may be asserted by a legal representative or natural guardian of
758	the beneficiary. Notice under subsection (1) and a trust
759	accounting under paragraph (a) provided to a representative of
760	the beneficiary as defined in s. 731.303 shall bind the
761	beneficiary, and the trustee shall not be required to provide
762	such notice or trust accounting to any beneficiary who would be
763	bound by an order binding on a representative of the beneficiary
764	under s. 731.303, if such notice or trust accounting,
765	respectively, is provided to that representative.
766	Section 27. For the purpose of incorporating the amendment
767	to section 731.303, Florida Statutes, in references thereto,
768	subsection (4) of section 737.307, Florida Statutes, is
769	reenacted to read:
770	737.307 Limitations on proceedings against trustees after
771	beneficiary receives trust disclosure documents.--
772	(4) A beneficiary has received a trust disclosure document
773	or a limitation notice if, being an adult, it is received by the
774	beneficiary or if, being a minor, disabled person, or person who
775	may take by virtue of the exercise or nonexercise of a power of
776	appointment, it is received by the beneficiary's representative
777	as defined in s. 731.303.
778	Section 28. For the purpose of incorporating the amendment
779	to section 732.502, Florida Statutes, in references thereto,
780	paragraph (a) of subsection (2) of section 382.025, Florida
781	Statutes, is reenacted to read:
782	382.025 Certified copies of vital records;
783	confidentiality; research.--
784	(2) OTHER RECORDS.--
785	(a) The department shall authorize the issuance of a
786	certified copy of all or part of any marriage, dissolution of
787	marriage, or death or fetal death certificate, excluding that
788	portion which is confidential and exempt from the provisions of
789	s. 119.07(1) as provided under s. 382.008, to any person
790	requesting it upon receipt of a request and payment of the fee
791	prescribed by this section. A certification of the death or
792	fetal death certificate which includes the confidential portions
793	shall be issued only:
794	1. To the registrant's spouse or parent, or to the
795	registrant's child, grandchild, or sibling, if of legal age, or
796	to any person who provides a will that has been executed
797	pursuant to s. 732.502, insurance policy, or other document that
798	demonstrates his or her interest in the estate of the
799	registrant, or to any person who provides documentation that he
800	or she is acting on behalf of any of them;
801	2. To any agency of the state or local government or the
802	United States for official purposes upon approval of the
803	department; or
804	3. Upon order of any court of competent jurisdiction.
805	Section 29. For the purpose of incorporating the amendment
806	to section 732.603, Florida Statutes, in references thereto,
807	section 732.604, Florida Statutes, is reenacted to read:
808	732.604 Failure of testamentary provision.--
809	(1) Except as provided in s. 732.603, if a devise other
810	than a residuary devise fails for any reason, it becomes a part
811	of the residue.
812	(2) Except as provided in s. 732.603, if the residue is
813	devised to two or more persons and the devise to one of the
814	residuary devisees fails for any reason, that devise passes to
815	the other residuary devisee, or to the other residuary devisees
816	in proportion to their interests in the residue.
817	Section 30. For the purpose of incorporating the amendment
818	to section 732.603, Florida Statutes, in references thereto,
819	paragraph (a) of subsection (3) of section 732.801, Florida
820	Statutes, is reenacted to read:
821	732.801 Disclaimer of interests in property passing by
822	will or intestate succession or under certain powers of
823	appointment.--
824	(3) DISPOSITION OF DISCLAIMED INTERESTS.--
825	(a) Unless the decedent or a donee of a power of
826	appointment has otherwise provided by will or other appropriate
827	instrument with reference to the possibility of a disclaimer by
828	the beneficiary, the interest disclaimed shall descend, be
829	distributed, or otherwise be disposed of in the same manner as
830	if the disclaimant had died immediately preceding the death or
831	other event that caused the disclaimant's interest to become
832	indefeasibly fixed both in quality and quantity. The disclaimer
833	shall relate to that date for all purposes, whether recorded
834	before or after the death or other event. An interest in
835	property disclaimed shall never vest in the disclaimant. If the
836	provisions of s. 732.603 would have been applicable had the
837	disclaimant in fact died immediately preceding the death or
838	other event, they shall be applicable to the disclaimed
839	interest.
840	Section 31. For the purpose of incorporating the amendment
841	to section 733.2121, Florida Statutes, in references thereto,
842	section 733.701, Florida Statutes, is reenacted to read:
843	733.701 Notifying creditors.--Unless creditors' claims are
844	otherwise barred by s. 733.710, every personal representative
845	shall cause notice to creditors to be published and served under
846	s. 733.2121.
847	Section 32. For the purpose of incorporating the amendment
848	to section 95.031, Florida Statutes, in references thereto,
849	section 63.182, Florida Statutes, is reenacted to read:
850	63.182 Statute of repose.--Notwithstanding s. 95.031 or s.
851	95.11 or any other statute:
852	(1) An action or proceeding of any kind to vacate, set
853	aside, or otherwise nullify a judgment of adoption or an
854	underlying judgment terminating parental rights on any ground,
855	including duress but excluding fraud, shall in no event be filed
856	more than 1 year after entry of the judgment terminating
857	parental rights.
858	(2) An action or proceeding of any kind to vacate, set
859	aside, or otherwise nullify a judgment of adoption or an
860	underlying judgment terminating parental rights on grounds of
861	fraud shall in no event be filed more than 2 years after entry
862	of the judgment terminating parental rights.
863	Section 33. This act shall take effect upon becoming a
864	law.
865