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A bill to be entitled

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An act relating to fiduciaries; creating s. 90.5021, F.S.;

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providing a fiduciary lawyer-client privilege for purposes

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of the Florida Evidence Code; providing that a

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communication between a lawyer and a client acting as a

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fiduciary is privileged and protected from disclosure;

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amending s. 736.0703, F.S.; providing exceptions to duties

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and liabilities of cotrustees for excluded cotrustees

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under certain circumstances; providing for liabilities and

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obligations of included cotrustees; amending s. 736.0802,

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F.S.; providing an exception for trustee payments of costs

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and attorney's fees from trust assets except pursuant to

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court order under certain circumstances; providing

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requirements for obtaining such a court order; preserving

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certain court remedies; amending s. 736.1008, F.S.;

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specifying when a claim accrues against a trustee for

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breach of trust based on a matter not adequately

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disclosed; providing for application; specifying periods

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of repose barring claims by a beneficiary against a

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trustee; providing for construction; providing for

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application; providing an effective date.

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

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     Section 1.  Section 90.5021, Florida Statutes, is created to

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read:

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     90.5021 Fiduciary lawyer-client privilege.--

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     (1) For the purpose of this section, a client acts as a

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fiduciary when serving as a personal representative or a trustee

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as defined in s. 731.201, an administrator ad litem as described

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in s. 733.308, a curator as described in s. 733.501, a guardian

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or guardian ad litem as defined in s. 744.102, a conservator as

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defined in s. 710.102, or an attorney in fact as described in

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chapter 709.

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     (2) A communication between a lawyer and a client acting as

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a fiduciary is privileged and protected from disclosure under s.

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90.502 to the same extent as if the client were not acting as a

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fiduciary. In applying s. 90.502 to a communication under this

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section, only the person or entity acting as a fiduciary is

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considered a client of the lawyer.

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     Section 2.  Subsection (7) of section 736.0703, Florida

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Statutes, is amended, and subsection (9) is added to that

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section, to read:

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     736.0703  Cotrustees.--

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     (7) Except as otherwise provided in subsection (9), each

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cotrustee shall exercise reasonable care to:

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     (a)  Prevent a cotrustee from committing a breach of trust.

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     (b)  Compel a cotrustee to redress a breach of trust.

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     (9) If the terms of a trust instrument provide for the

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appointment of more than one trustee but confer upon one or more

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of the trustees, to the exclusion of the others, the power to

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direct or prevent specified actions of the trustees, the excluded

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trustees shall act in accordance with the exercise of the power.

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An excluded trustee is not liable, individually or as a

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fiduciary, for any consequence that results from compliance with

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the exercise of the power, regardless of the information

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available to the excluded trustees. The excluded trustees are

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relieved of any obligation to review, inquire, investigate, or

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make recommendations or evaluations with respect to the exercise

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of the power. The trustee or trustees having the power to direct

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or prevent actions of the trustees shall be liable to the

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beneficiaries with respect to the exercise of the power as if the

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excluded trustees were not in office and have the exclusive

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obligation to account to and defend any action brought by the

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beneficiaries with respect to the exercise of the power.

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     Section 3.  Subsection (10) of section 736.0802, Florida

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Statutes, is amended to read:

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     736.0802  Duty of loyalty.--

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     (10)  Payment of costs or attorney's fees incurred in any

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trust proceeding from the assets of the trust may be made by the

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trustee without the approval of any person and without court

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authorization, unless the court orders otherwise as provided in

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paragraph (a). except that court authorization shall be required

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if an action has been filed

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     (a) If a claim or defense asserted against the trustee

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based upon a breach of trust is made against the trustee in a

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trust proceeding, a party must obtain a court order to prohibit

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the trustee from paying costs or attorney's fees from trust

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assets. To obtain an order prohibiting payment of costs or

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attorney's fees from trust assets, a party must make a reasonable

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showing by evidence in the record or by proffering evidence that

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provides a reasonable basis for a court to conclude that there

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has been a breach of trust. The trustee may proffer evidence to

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rebut the evidence submitted by a party.

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     (b) This subsection does not restrict the remedies a court

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may employ to remedy a breach of trust, including, but not

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limited to, ordering appropriate refunds. Court authorization is

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not required if the action or defense is later withdrawn or

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dismissed by the party that is alleging a breach of trust or

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resolved without a determination by the court that the trustee

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has committed a breach of trust.

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     Section 4.  Subsection (3) of section 736.1008, Florida

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Statutes, is amended, present subsection (6) of that section is

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renumbered as subsection (7), and new subsection (6) is added to

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that section, to read:

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     736.1008  Limitations on proceedings against trustees.--

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     (3)  When a trustee has not issued a final trust accounting

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or has not given written notice to the beneficiary of the

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availability of the trust records for examination and that claims

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with respect to matters not adequately disclosed may be barred, a

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claim against the trustee for breach of trust based on a matter

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not adequately disclosed in a trust disclosure document is barred

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as provided in chapter 95 and accrues when the beneficiary has

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actual knowledge of:

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     (a) The facts upon which the claim is based if such actual

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knowledge is established by clear and convincing evidence; or

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     (b) The trustee's repudiation of the trust or adverse

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possession of trust assets, and is barred as provided in chapter

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95.

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Paragraph (a) applies to claims based upon acts or omissions

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occurring on or after July 1, 2008.

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     (6)(a) Notwithstanding subsections (1), (2), and (3), all

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claims by a beneficiary against a trustee are barred:

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     1. Upon the later of:

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     a. Ten years after the date the trust terminates, the

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trustee resigns, or the fiduciary relationship between the

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trustee and the beneficiary otherwise ends if the beneficiary had

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actual knowledge of the existence of the trust during the 10-year

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period; or

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     b. Twenty years after the date of the act or omission of

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the trustee which is complained of if the beneficiary had actual

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knowledge of the existence of the trust during the 20-year period

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or;

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     2. Forty years after the date the trust terminates, the

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trustee resigns, or the fiduciary relationship between the

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trustee and the beneficiary otherwise ends.

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     (b) For purposes of this subsection, the failure of the

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trustee to take corrective action is not a separate act or

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omission and does not extend the period of repose established by

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this subsection.

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     (c) This subsection applies to claims based upon acts or

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omissions occurring on or after July 1, 2008.

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     Section 5.  This act shall take effect July 1, 2008.