CS/HB 435

1
A bill to be entitled
2An act relating to trust administration; amending s.
3736.0703, F.S.; providing exceptions to duties and
4liabilities of cotrustees for excluded cotrustees under
5certain circumstances; relieving excluded cotrustees from
6specified liabilities and obligations under certain
7circumstances; providing for liabilities and obligations
8of included cotrustees; amending s. 736.0802, F.S.;
9providing an exception for trustee payments of costs and
10attorney's fees from trust assets except pursuant to court
11order under certain circumstances; requiring trustees to
12provide certain notice to beneficiaries; providing notice
13requirements; providing requirements for obtaining such a
14court order; specifying remedies; providing for specified
15refunds and sanctions; preserving certain court remedies;
16amending s. 736.1008, F.S.; specifying periods of repose
17barring claims by a beneficiary against a trustee;
18providing construction; providing an effective date.
19
20Be It Enacted by the Legislature of the State of Florida:
21
22     Section 1.  Subsection (7) of section 736.0703, Florida
23Statutes, is amended, and subsection (9) is added to that
24section, to read:
25     736.0703  Cotrustees.--
26     (7)  Except as otherwise provided in subsection (9), each
27cotrustee shall exercise reasonable care to:
28     (a)  Prevent a cotrustee from committing a breach of trust.
29     (b)  Compel a cotrustee to redress a breach of trust.
30     (9)  If the terms of a trust instrument provide for the
31appointment of more than one trustee but confer upon one or more
32of the trustees, to the exclusion of the others, the power to
33direct or prevent specified actions of the trustees, the
34excluded trustees shall act in accordance with the exercise of
35the power. Except in cases of willful misconduct on the part of
36the directed trustee of which the excluded trustee has actual
37knowledge, an excluded trustee is not liable, individually or as
38a fiduciary, for any consequence that results from compliance
39with the exercise of the power, regardless of the information
40available to the excluded trustees. The excluded trustees are
41relieved of any obligation to review, inquire, investigate, or
42make recommendations or evaluations with respect to the exercise
43of the power. The trustee or trustees having the power to direct
44or prevent actions of the trustees shall be liable to the
45beneficiaries with respect to the exercise of the power as if
46the excluded trustees were not in office and shall have the
47exclusive obligation to account to and to defend any action
48brought by the beneficiaries with respect to the exercise of the
49power.
50     Section 2.  Subsection (10) of section 736.0802, Florida
51Statutes, is amended to read:
52     736.0802  Duty of loyalty.--
53     (10)  Payment of costs or attorney's fees incurred in any
54trust proceeding from the assets of the trust may be made by the
55trustee without the approval of any person and without court
56authorization, unless the court orders otherwise as provided in
57paragraph (b) except that court authorization shall be required
58if an action has been filed or defense asserted against the
59trustee based upon a breach of trust. Court authorization is not
60required if the action or defense is later withdrawn or
61dismissed by the party that is alleging a breach of trust or
62resolved without a determination by the court that the trustee
63has committed a breach of trust.
64     (a)  If a claim or defense based upon a breach of trust is
65made against a trustee in a proceeding, the trustee shall
66provide written notice to each qualified beneficiary of the
67trust whose share of the trust may be affected by the payment of
68attorney's fees and costs of the intention to pay costs or
69attorney's fees incurred in the proceeding from the trust prior
70to making payment. The written notice shall be delivered by
71sending a copy by any commercial delivery service requiring a
72signed receipt, by any form of mail requiring a signed receipt,
73or as provided in the Florida Rules of Civil Procedure for
74service of process. The written notice shall inform each
75qualified beneficiary of the trust whose share of the trust may
76be affected by the payment of attorney's fees and costs of the
77right to apply to the court for an order prohibiting the trustee
78from paying attorney's fees or costs from trust assets. If a
79trustee is served with a motion for an order prohibiting the
80trustee from paying attorney's fees or costs in the proceeding
81and the trustee pays attorney's fees or costs before an order is
82entered on the motion, the trustee and the trustee's attorneys
83who have been paid attorney's fees or costs from trust assets to
84defend against the claim or defense are subject to the remedies
85in paragraphs (b) and (c).
86     (b)  If a claim or defense based upon breach of trust is
87made against a trustee in a proceeding, a party must obtain a
88court order to prohibit the trustee from paying costs or
89attorney's fees from trust assets. To obtain an order
90prohibiting payment of costs or attorney's fees from trust
91assets, a party must make a reasonable showing by evidence in
92the record or by proffering evidence that provides a reasonable
93basis for a court to conclude that there has been a breach of
94trust. The trustee may proffer evidence to rebut the evidence
95submitted by a party. The court in its discretion may defer
96ruling on the motion, pending discovery to be taken by the
97parties. If the court finds that there is a reasonable basis to
98conclude that there has been a breach of trust, unless the court
99finds good cause, the court shall enter an order prohibiting the
100payment of further attorney's fees and costs from the assets of
101the trust and shall order attorney's fees or costs previously
102paid from assets of the trust to be refunded. An order entered
103under this paragraph shall not limit a trustee's right to seek
104an order permitting the payment of some or all of the attorney's
105fees or costs incurred in the proceeding from trust assets,
106including any fees required to be refunded, after the claim or
107defense is finally determined by the court. If a claim or
108defense based upon a breach of trust is withdrawn, dismissed, or
109resolved without a determination by the court that the trustee
110committed a breach of trust after the entry of an order
111prohibiting payment of attorney's fees and costs pursuant to
112this paragraph, the trustee may pay costs or attorneys' fees
113incurred in the proceeding from the assets of the trust without
114further court authorization.
115     (c)  If the court orders a refund under paragraph (b), the
116court may enter such sanctions as are appropriate if a refund is
117not made as directed by the court, including, but not limited
118to, striking defenses or pleadings filed by the trustee. Nothing
119in this subsection limits other remedies and sanctions the court
120may employ for the failure to refund timely.
121     (d)  Nothing in this subsection limits the power of the
122court to review fees and costs or the right of any interested
123persons to challenge fees and costs after payment, after an
124accounting, or after conclusion of the litigation.
125     (e)  Notice under paragraph (a) is not required if the
126action or defense is later withdrawn or dismissed by the party
127that is alleging a breach of trust or resolved without a
128determination by the court that the trustee has committed a
129breach of trust.
130     Section 3.  Subsection (3) of section 736.1008, Florida
131Statutes, is amended, subsection (6) of that section is
132renumbered as subsection (7), and new subsection (6) is added to
133that section, to read:
134     736.1008  Limitations on proceedings against trustees.--
135     (3)  When a trustee has not issued a final trust accounting
136or has not given written notice to the beneficiary of the
137availability of the trust records for examination and that
138claims with respect to matters not adequately disclosed may be
139barred, a claim against the trustee for breach of trust based on
140a matter not adequately disclosed in a trust disclosure document
141is barred as provided in chapter 95 and accrues when the
142beneficiary has actual knowledge of:
143     (a)  The facts upon which the claim is based if such actual
144knowledge is established by clear and convincing evidence; or
145     (b)  The trustee's repudiation of the trust or adverse
146possession of trust assets, and is barred as provided in chapter
14795.
148
149Paragraph (a) applies to claims based upon acts or omissions
150occurring on or after July 1, 2008.
151     (6)(a)  Notwithstanding subsections (1), (2), and (3), all
152claims by a beneficiary against a trustee are barred:
153     1.  Upon the later of:
154     a.  Ten years after the date the trust terminates, the
155trustee resigns, or the fiduciary relationship between the
156trustee and the beneficiary otherwise ends if the beneficiary
157had actual knowledge of the existence of the trust and the
158beneficiary's status as a beneficiary throughout the 10-year
159period; or
160     b.  Twenty years after the date of the act or omission of
161the trustee that is complained of if the beneficiary had actual
162knowledge of the existence of the trust and the beneficiary's
163status as a beneficiary throughout the 20-year period; or
164     2.  Forty years after the date the trust terminates, the
165trustee resigns, or the fiduciary relationship between the
166trustee and the beneficiary otherwise ends.
167     (b)  When a beneficiary shows by clear and convincing
168evidence that a trustee actively concealed facts supporting a
169cause of action, any existing applicable statute of repose shall
170be extended by 30 years.
171     (c)  For purposes of sub-subparagraph (a)1.b., the failure
172of the trustee to take corrective action is not a separate act
173or omission and does not extend the period of repose established
174by this subsection.
175     (d)  This subsection applies to claims based upon acts or
176omissions occurring on or after July 1, 2008.
177     Section 4.  This act shall take effect July 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.