| 1 | A bill to be entitled | 
| 2 | An act relating to administration of estates; amending s. | 
| 3 | 731.201, F.S.; revising definitions; amending s. 732.108, | 
| 4 | F.S.; providing for nonapplication of certain limitations | 
| 5 | of actions provisions to certain paternity determinations; | 
| 6 | amending s. 732.2025, F.S.; revising a definition; | 
| 7 | amending s. 732.2045, F.S.; expanding an exclusion from | 
| 8 | application of certain provisions of law; amending s. | 
| 9 | 732.2075, F.S.; revising provisions for satisfaction of an | 
| 10 | elective share; providing additional requirements; | 
| 11 | amending s. 732.2085, F.S.; correcting a cross-reference; | 
| 12 | amending s. 732.2135, F.S.; revising criteria for time of | 
| 13 | an election; providing for award of attorney fees and | 
| 14 | costs for elections made in bad faith; amending s. | 
| 15 | 732.402, F.S.; revising criteria for certain household | 
| 16 | items, motor vehicles, and tuition programs as exempt | 
| 17 | property; amending s. 733.201, F.S.; revising a criterion | 
| 18 | for proof of wills to conform; amending s. 733.504, F.S.; | 
| 19 | revising a criterion for removal of a personal | 
| 20 | representative to conform; amending s. 733.602, F.S.; | 
| 21 | removing a cross-reference; amending s. 735.203, F.S.; | 
| 22 | revising requirements for a petition for summary | 
| 23 | administration; amending s. 739.102, F.S.; revising a | 
| 24 | definition; amending s. 739.104, F.S.; excluding from | 
| 25 | court approval certain disclaimers of interests in | 
| 26 | property; amending s. 739.201, F.S.; providing an | 
| 27 | additional rule applicable to disclaimers of interests in | 
| 28 | property ;amending s. 739.207, F.S.; limiting a criterion | 
| 29 | for effectiveness of a disclaimer of power held in a | 
| 30 | fiduciary capacity; amending s. 739.402, F.S.; correcting | 
| 31 | terminology; amending s. 739.501, F.S.; preserving | 
| 32 | application of certain provisions to effectiveness of | 
| 33 | certain disclaimers or transfers; amending ss. 660.417, | 
| 34 | 736.0802, and 895.02, F.S.; correcting cross-references to | 
| 35 | conform; providing an effective date. | 
| 36 | 
 | 
| 37 | Be It Enacted by the Legislature of the State of Florida: | 
| 38 | 
 | 
| 39 | Section 1.  Subsection (21) of section 731.201, Florida | 
| 40 | Statutes, is amended, subsections (25) through (39) of that | 
| 41 | section are renumbered as subsections (26) through (40), | 
| 42 | respectively, and a new subsection (25) is added to that | 
| 43 | section, to read: | 
| 44 | 731.201  General definitions.--Subject to additional | 
| 45 | definitions in subsequent chapters that are applicable to | 
| 46 | specific chapters or parts, and unless the context otherwise | 
| 47 | requires, in this code, in s. 409.9101, and in chapters 736, | 
| 48 | 738, 739, and 744, the term: | 
| 49 | (21)  "Incapacitated" "Incompetent"means a judicial | 
| 50 | determination that a person lacks the capacity to manage at | 
| 51 | least some of the person's property or to meet at least some of | 
| 52 | the person's essential health and safety requirements. A minor | 
| 53 | shall be treated as being incapacitated or a person adjudicated  | 
| 54 | incompetent. | 
| 55 | (25)  "Minor" means a person under 18 years of age whose | 
| 56 | disabilities have not been removed by marriage or otherwise. | 
| 57 | Section 2.  Paragraph (b) of subsection (2) of section | 
| 58 | 732.108, Florida Statutes, is amended to read: | 
| 59 | 732.108  Adopted persons and persons born out of wedlock.-- | 
| 60 | (2)  For the purpose of intestate succession in cases not | 
| 61 | covered by subsection (1), a person born out of wedlock is a | 
| 62 | descendant of his or her mother and is one of the natural | 
| 63 | kindred of all members of the mother's family. The person is | 
| 64 | also a descendant of his or her father and is one of the natural | 
| 65 | kindred of all members of the father's family, if: | 
| 66 | (b)  The paternity of the father is established by an | 
| 67 | adjudication before or after the death of the father. Chapter 95 | 
| 68 | shall not apply in determining heirs in a probate proceeding | 
| 69 | under this paragraph. | 
| 70 | Section 3.  Subsection (10) of section 732.2025, Florida | 
| 71 | Statutes, is amended to read: | 
| 72 | 732.2025  Definitions.--As used in ss. 732.2025-732.2155, | 
| 73 | the term: | 
| 74 | (10)  "Transfer in satisfaction of the elective share" | 
| 75 | means an irrevocable transfer by the decedent during life to an | 
| 76 | elective share trust. | 
| 77 | Section 4.  Paragraph (f) of subsection (1) of section | 
| 78 | 732.2045, Florida Statutes, is amended to read: | 
| 79 | 732.2045  Exclusions and overlapping application.-- | 
| 80 | (1)  EXCLUSIONS.--Section 732.2035 does not apply to: | 
| 81 | (f)  The decedent's one-half of the property to which ss. | 
| 82 | 732.216-732.228, or any similar provisions of law of another | 
| 83 | state, apply and real property that is community property under | 
| 84 | the laws of the jurisdiction where it is located. | 
| 85 | Section 5.  Section 732.2075, Florida Statutes, is amended | 
| 86 | to read: | 
| 87 | 732.2075  Sources from which elective share payable; | 
| 88 | abatement.-- | 
| 89 | (1)  Unless otherwise provided in the decedent's will or, | 
| 90 | in the absence of a provision in the decedent's will, in a trust | 
| 91 | referred to in the decedent's will, the following are applied | 
| 92 | first to satisfy the elective share: | 
| 93 | (a)  Property interests included in the elective estate | 
| 94 | that pass or have passed to or for the benefit of the surviving | 
| 95 | spouse, including interests that are contingent upon making the | 
| 96 | election, but only to the extent that such contingent interests | 
| 97 | do not diminish other property interests that would be applied | 
| 98 | to satisfy the elective share in the absence of the contingent | 
| 99 | interests. To the extent paid to or for the benefit of the  | 
| 100 | surviving spouse, the proceeds of any term or other policy of  | 
| 101 | insurance on the decedent's life if, at the time of decedent's  | 
| 102 | death, the policy was owned by any person other than the  | 
| 103 | surviving spouse. | 
| 104 | (b)  To the extent paid to or for the benefit of the | 
| 105 | surviving spouse, amounts payable under any plan or arrangement | 
| 106 | described in s. 732.2035(7). | 
| 107 | (c)  To the extent paid to or for the benefit of the | 
| 108 | surviving spouse, the decedent's one-half of any property | 
| 109 | described in s. 732.2045(1)(f). | 
| 110 | (d)  To the extent paid to or for the benefit of the | 
| 111 | surviving spouse, the proceeds of any term or other policy of | 
| 112 | insurance on the decedent's life if, at the time of decedent's | 
| 113 | death, the policy was owned by any person other than the | 
| 114 | surviving spouse. | 
| 115 | (e) (d)Property held for the benefit of the surviving | 
| 116 | spouse in a qualifying special needs trust. | 
| 117 | (e)  Property interests included in the elective estate  | 
| 118 | that pass or have passed to or for the benefit of the surviving  | 
| 119 | spouse, including interests that are contingent upon making the  | 
| 120 | election, but only to the extent that such contingent interests  | 
| 121 | do not diminish other property interests that would be applied  | 
| 122 | to satisfy the elective share in the absence of the contingent  | 
| 123 | interests. | 
| 124 | (f)  Property interests that would have satisfied the | 
| 125 | elective share under any preceding paragraph of this subsection | 
| 126 | but were disclaimed. | 
| 127 | (2)  If, after the application of subsection (1), the | 
| 128 | elective share is not fully satisfied, the unsatisfied balance | 
| 129 | shall be allocated entirely to one class of apportioned among  | 
| 130 | thedirect recipients of the remaining elective estate and | 
| 131 | apportioned among those recipients, and if the elective share | 
| 132 | amount is not fully satisfied, to the next class of direct | 
| 133 | recipients, in the following order of priority, until the | 
| 134 | elective share amount is satisfied: | 
| 135 | (a)  Class 1.--The decedent's probate estate and revocable | 
| 136 | trusts. | 
| 137 | (b)  Class 2.--Recipients of property interests, other than | 
| 138 | protected charitable interests, included in the elective estate | 
| 139 | under s. 732.2035(2), (3), or (6) and, to the extent the | 
| 140 | decedent had at the time of death the power to designate the | 
| 141 | recipient of the property, property interests, other than | 
| 142 | protected charitable interests, included under s. 732.2035(5) | 
| 143 | and (7). | 
| 144 | (c)  Class 3.--Recipients of all other property interests, | 
| 145 | other than protected charitable interests, included in the | 
| 146 | elective estate. | 
| 147 | (d)  Class 4.--Recipients of protected charitable lead  | 
| 148 | interests, but only to the extent and at such times that  | 
| 149 | contribution is permitted without disqualifying the charitable  | 
| 150 | interest in that property for a deduction under the United  | 
| 151 | States gift tax laws. | 
| 152 | 
 | 
| 153 | For purposes of this subsection, a protected charitable interest | 
| 154 | is any interest for which a charitable deduction with respect to | 
| 155 | the transfer of the property was allowed or allowable to the | 
| 156 | decedent or the decedent's spouse under the United States gift | 
| 157 | or income tax laws. A protected charitable lead interest is a  | 
| 158 | protected charitable interest where one or more deductible  | 
| 159 | interests in charity precede some other nondeductible interest  | 
| 160 | or interests in the property. | 
| 161 | (3)  If, after the application of subsections (1) and (2), | 
| 162 | the elective share amount is not fully satisfied, the additional | 
| 163 | amount due to the surviving spouse shall be determined and | 
| 164 | satisfied as follows: | 
| 165 | (a)  The remaining unsatisfied balance shall be satisfied | 
| 166 | from property described in paragraphs (1)(a) and (b) which | 
| 167 | passes or which has passed in a trust in which the surviving | 
| 168 | spouse has a beneficial interest, other than an elective share | 
| 169 | trust or a qualified special needs trust. | 
| 170 | (b)  In determining the amount of the remaining unsatisfied | 
| 171 | balance, the effect, if any, of any change caused by the | 
| 172 | operation of this subsection in the value of the spouse's | 
| 173 | beneficial interests in property described in paragraphs (1)(a) | 
| 174 | and (b) shall be taken into account, including, if necessary, | 
| 175 | further recalculations of the value of those beneficial | 
| 176 | interests. | 
| 177 | (c)  If there is more than one trust to which this | 
| 178 | subsection could apply, unless otherwise provided in the | 
| 179 | decedent's will or, in the absence of a provision in the | 
| 180 | decedent's will, in a trust referred to in the decedent's will, | 
| 181 | the unsatisfied balance shall be apportioned pro rata to all | 
| 182 | such trusts in proportion to the value, as determined under s. | 
| 183 | 732.2095(2)(d), of the surviving spouse's beneficial interests | 
| 184 | in the trusts. | 
| 185 | (4)  If, after the application of subsections (1), (2), and | 
| 186 | (3), the elective share is not fully satisfied, any remaining | 
| 187 | unsatisfied balance shall be satisfied from direct recipients of | 
| 188 | protected charitable lead interests, but only to the extent and | 
| 189 | at such times that contribution is permitted without | 
| 190 | disqualifying the charitable interest in that property for a | 
| 191 | deduction under the United States gift tax laws. For purposes of | 
| 192 | this subsection, a protected charitable lead interest is a | 
| 193 | protected charitable interest as defined in subsection (2) in | 
| 194 | which one or more deductible interests in charity precede some | 
| 195 | other nondeductible interest or interests in the property. | 
| 196 | (5) (3)The contribution required of the decedent's probate | 
| 197 | estate and revocable trusts may be made in cash or in kind. In | 
| 198 | the application of this subsection, subsections (6) (4)and (7) | 
| 199 | (5)are to be applied to charge contribution for the elective | 
| 200 | share to the beneficiaries of the probate estate and revocable | 
| 201 | trusts as if all beneficiaries were taking under a common | 
| 202 | governing instrument. | 
| 203 | (6) (4)Unless otherwise provided in the decedent's will | 
| 204 | or, in the absence of a provision in the decedent's will, in a | 
| 205 | trust referred to in the decedent's will, any amount to be | 
| 206 | satisfied from the decedent's probate estate, other than from | 
| 207 | property passing to an inter vivos trust, shall be paid from the | 
| 208 | assets of the probate estate in the order prescribed in s. | 
| 209 | 733.805. | 
| 210 | (7) (5)Unless otherwise provided in the trust instrument | 
| 211 | or, in the decedent's will if there is no provision in the trust | 
| 212 | instrument, any amount to be satisfied from trust property shall | 
| 213 | be paid from the assets of the trust in the order provided for | 
| 214 | claims under s. 736.05053(2) and (3). A direction in the | 
| 215 | decedent's will is effective only for revocable trusts. | 
| 216 | Section 6.  Paragraph (a) of subsection (1) of section | 
| 217 | 732.2085, Florida Statutes, is amended to read: | 
| 218 | 732.2085  Liability of direct recipients and | 
| 219 | beneficiaries.-- | 
| 220 | (1)  Only direct recipients of property included in the | 
| 221 | elective estate and the beneficiaries of the decedent's probate | 
| 222 | estate or of any trust that is a direct recipient, are liable to | 
| 223 | contribute toward satisfaction of the elective share. | 
| 224 | (a)  Within each of the classes described in s. | 
| 225 | 732.2075(2)(b) and ,(c), and (d), each direct recipient is | 
| 226 | liable in an amount equal to the value, as determined under s. | 
| 227 | 732.2055, of the proportional part of the liability for all | 
| 228 | members of the class. | 
| 229 | Section 7.  Subsection (3) of section 732.2135, Florida | 
| 230 | Statutes, is amended, and subsection (5) is added to that | 
| 231 | section, to read: | 
| 232 | 732.2135  Time of election; extensions; withdrawal.-- | 
| 233 | (3)  The surviving spouse or an attorney in fact, guardian | 
| 234 | of the property, or personal representative of the surviving | 
| 235 | spouse may withdraw an election at any time within on or before  | 
| 236 | the earlier of the date that is8 months after thedate of the  | 
| 237 | decedent's death and before the court's or the date of a court  | 
| 238 | order of contribution. If an election is withdrawn, the court  | 
| 239 | may assess attorney's fees and costs against the surviving  | 
| 240 | spouse or the surviving spouse's estate. | 
| 241 | (5)  If the court determines that an election is made or | 
| 242 | pursued in bad faith, the court may assess attorney's fees and | 
| 243 | costs against the surviving spouse or the surviving spouse's | 
| 244 | estate. | 
| 245 | Section 8.  Subsection (2) of section 732.402, Florida | 
| 246 | Statutes, is amended to read: | 
| 247 | 732.402  Exempt property.-- | 
| 248 | (2)  Exempt property shall consist of: | 
| 249 | (a)  Household furniture, furnishings, and appliances in | 
| 250 | the decedent's usual place of abode up to a net value of $20,000 | 
| 251 | $10,000as of the date of death. | 
| 252 | (b)  Two motor vehicles as defined in s. 316.003(21), which | 
| 253 | do not, individually as to either such motor vehicle, have a | 
| 254 | gross vehicle weight in excess of 15,000 pounds, All automobiles  | 
| 255 | held in the decedent's name and regularly used by the decedent | 
| 256 | or members of the decedent's immediate family as their personal | 
| 257 | motor vehicles automobiles. | 
| 258 | (c)  All qualified tuition programs authorized by s. 529 of | 
| 259 | the Internal Revenue Code of 1986, as amended, including, but | 
| 260 | not limited to, the Florida Prepaid College Trust Fund advance | 
| 261 | payment contracts under s. 1009.98 and the Florida Prepaid | 
| 262 | College Trust Fund participation agreements under s. 1009.981 | 
| 263 | Stanley G. Tate Florida Prepaid College Program contracts  | 
| 264 | purchased and Florida College Savings agreements established  | 
| 265 | under part IV of chapter 1009. | 
| 266 | (d)  All benefits paid pursuant to s. 112.1915. | 
| 267 | Section 9.  Subsection (3) of section 733.201, Florida | 
| 268 | Statutes, is amended to read: | 
| 269 | 733.201  Proof of wills.-- | 
| 270 | (3)  If it appears to the court that the attesting | 
| 271 | witnesses cannot be found or that they have become incapacitated | 
| 272 | incompetentafter the execution of the will or their testimony | 
| 273 | cannot be obtained within a reasonable time, a will may be | 
| 274 | admitted to probate upon the oath of the personal representative | 
| 275 | nominated by the will as provided in subsection (2), whether or | 
| 276 | not the nominated personal representative is interested in the | 
| 277 | estate, or upon the oath of any person having no interest in the | 
| 278 | estate under the will stating that the person believes the | 
| 279 | writing exhibited to be the true last will of the decedent. | 
| 280 | Section 10.  Subsection (1) of section 733.504, Florida | 
| 281 | Statutes, is amended to read: | 
| 282 | 733.504  Removal of personal representative; causes for | 
| 283 | removal.--A personal representative may be removed and the | 
| 284 | letters revoked for any of the following causes, and the removal | 
| 285 | shall be in addition to any penalties prescribed by law: | 
| 286 | (1)  Adjudication that the personal representative is | 
| 287 | incapacitated of incompetency. | 
| 288 | Section 11.  Subsection (1) of section 733.602, Florida | 
| 289 | Statutes, is amended to read: | 
| 290 | 733.602  General duties.-- | 
| 291 | (1)  A personal representative is a fiduciary who shall | 
| 292 | observe the standards of care applicable to trustees as  | 
| 293 | described by part VII of chapter 736. A personal representative | 
| 294 | is under a duty to settle and distribute the estate of the | 
| 295 | decedent in accordance with the terms of the decedent's will and | 
| 296 | this code as expeditiously and efficiently as is consistent with | 
| 297 | the best interests of the estate. A personal representative | 
| 298 | shall use the authority conferred by this code, the authority in | 
| 299 | the will, if any, and the authority of any order of the court, | 
| 300 | for the best interests of interested persons, including | 
| 301 | creditors. | 
| 302 | Section 12.  Section 735.203, Florida Statutes, is amended | 
| 303 | to read: | 
| 304 | 735.203  Petition for summary administration.-- | 
| 305 | (1)  A petition for summary administration may be filed by | 
| 306 | any beneficiary or person nominated as personal representative | 
| 307 | in the decedent's will offered for probate. The petition must be | 
| 308 | signed and verified by the surviving spouse, if any, and any | 
| 309 | beneficiaries except that the joinder in a petition for summary | 
| 310 | administration is not required of a beneficiary who will receive | 
| 311 | full distributive share under the proposed distribution. Any | 
| 312 | beneficiary not joining shall be served by formal notice with | 
| 313 | the petition. | 
| 314 | (2)  If a person named in subsection (1) has died, is | 
| 315 | incapacitated, or is a minor, or has conveyed or transferred all | 
| 316 | interest in the property of the estate, then, as to that person, | 
| 317 | the petition must be signed and verified certifiedby: | 
| 318 | (a)  The personal representative, if any, of a deceased | 
| 319 | person or, if none, the surviving spouse, if any, and the | 
| 320 | beneficiaries; | 
| 321 | (b)  The guardian of an incapacitated person or a minor; or | 
| 322 | (c)  The grantee or transferee of any of them shall be | 
| 323 | authorized to sign and verify the petition instead of the | 
| 324 | beneficiary or surviving spouse. | 
| 325 | (3)  If each trustee of a trust that is a beneficiary of | 
| 326 | the estate of the deceased person is also a petitioner, each | 
| 327 | qualified beneficiary of the trust as defined in s. 736.0103 | 
| 328 | shall be served by formal notice with the petition for summary | 
| 329 | administration unless joinder in, or consent to, the petition is | 
| 330 | obtained from each qualified beneficiary of the trust. The  | 
| 331 | joinder in, or consent to, a petition for summary administration  | 
| 332 | is not required of a beneficiary who will receive full  | 
| 333 | distributive share under the proposed distribution. Any  | 
| 334 | beneficiary not joining or consenting shall receive formal  | 
| 335 | notice of the petition. | 
| 336 | Section 13.  Subsection (8) of section 739.102, Florida | 
| 337 | Statutes, is amended to read: | 
| 338 | 739.102  Definitions.--As used in this chapter, the term: | 
| 339 | (8)  "Insolvent" means, solely for purposes of this | 
| 340 | chapter, that the sum of a person's debts is greater than all of | 
| 341 | the person's assets at fair valuation and that . A person is  | 
| 342 | presumed to be "insolvent" ifthe person is generally not paying | 
| 343 | his or her debts as they become due. For purposes of this | 
| 344 | subsection, the term "assets" has the same meaning as that | 
| 345 | provided in s. 726.102. | 
| 346 | Section 14.  Subsection (2) of section 739.104, Florida | 
| 347 | Statutes, is amended to read: | 
| 348 | 739.104  Power to disclaim; general requirements; when | 
| 349 | irrevocable.-- | 
| 350 | (2)  With court approval, a fiduciary may disclaim, in | 
| 351 | whole or part, any interest in or power over property, including | 
| 352 | a power of appointment, except that a disclaimer of a power | 
| 353 | arising under s. 739.201(4) does not require court approval. | 
| 354 | Without court approval, a fiduciary may disclaim, in whole or in | 
| 355 | part, any interest in or power over property, including a power | 
| 356 | of appointment, if and to the extent that the instrument | 
| 357 | creating the fiduciary relationship explicitly grants the | 
| 358 | fiduciary the right to disclaim. In the absence of a court- | 
| 359 | appointed guardian, notwithstanding anything in chapter 744 to | 
| 360 | the contrary, without court approval, a natural guardian under | 
| 361 | s. 744.301 may disclaim on behalf of a minor child of the | 
| 362 | natural guardian, in whole or in part, any interest in or power | 
| 363 | over property, including a power of appointment, which the minor | 
| 364 | child is to receive solely as a result of another disclaimer, | 
| 365 | but only if the disclaimed interest or power does not pass to or | 
| 366 | for the benefit of the natural guardian as a result of the | 
| 367 | disclaimer. | 
| 368 | Section 15.  Subsection (4) is added to section 739.201, | 
| 369 | Florida Statutes, to read: | 
| 370 | 739.201  Disclaimer of interest in property.--Except for a | 
| 371 | disclaimer governed by s. 739.202, s. 739.203, or s. 739.204, | 
| 372 | the following rules apply to a disclaimer of an interest in | 
| 373 | property: | 
| 374 | (4)  In the case of a disclaimer of property over which the | 
| 375 | disclaimant has a power, in a fiduciary or nonfiduciary | 
| 376 | capacity, to direct the beneficial enjoyment of the disclaimed | 
| 377 | property, unless the disclaimer specifically provides to the | 
| 378 | contrary with reference to this subsection, the disclaimant | 
| 379 | shall also be deemed to have disclaimed that power unless the | 
| 380 | power is limited by an ascertainable standard, as defined in s. | 
| 381 | 736.0103, as in effect when the disclaimer becomes irrevocable. | 
| 382 | Section 16.  Subsection (3) of section 739.207, Florida | 
| 383 | Statutes, is amended to read: | 
| 384 | 739.207  Disclaimer of power held in fiduciary capacity.-- | 
| 385 | (3)  A disclaimer under this section is effective as to | 
| 386 | another fiduciary if the disclaimer so provides and the | 
| 387 | fiduciary disclaiming has the authority to bind the estate, | 
| 388 | trust, or other person for whom the fiduciary is acting, except | 
| 389 | that a disclaimer of a fiduciary power arising under s. | 
| 390 | 739.201(4) shall bind only the disclaiming fiduciary. | 
| 391 | Section 17.  Subsection (2) of section 739.402, Florida | 
| 392 | Statutes, is amended to read: | 
| 393 | 739.402  When disclaimer is barred or limited.-- | 
| 394 | (2)  A disclaimer of an interest in property is barred if | 
| 395 | any of the following events occur before the disclaimer becomes | 
| 396 | effective: | 
| 397 | (a)  The disclaimant disclaimeraccepts the interest sought | 
| 398 | to be disclaimed; | 
| 399 | (b)  The disclaimant voluntarily assigns, conveys, | 
| 400 | encumbers, pledges, or transfers the interest sought to be | 
| 401 | disclaimed or contracts to do so; | 
| 402 | (c)  The interest sought to be disclaimed is sold pursuant | 
| 403 | to a judicial sale; or | 
| 404 | (d)  The disclaimant is insolvent when the disclaimer | 
| 405 | becomes irrevocable. | 
| 406 | Section 18.  Section 739.501, Florida Statutes, is amended | 
| 407 | to read: | 
| 408 | 739.501  Tax-qualified disclaimer.--Notwithstanding any | 
| 409 | otherprovision of this chapter other than s. 739.402, if, as a | 
| 410 | result of a disclaimer or transfer, the disclaimed or | 
| 411 | transferred interest is treated pursuant to the provisions of s. | 
| 412 | 2518 of the Internal Revenue Code of 1986 as never having been | 
| 413 | transferred to the disclaimant, the disclaimer or transfer is | 
| 414 | effective as a disclaimer under this chapter. | 
| 415 | Section 19.  Paragraph (b) of subsection (3) of section | 
| 416 | 660.417, Florida Statutes, is amended to read: | 
| 417 | 660.417  Investment of fiduciary funds in investment | 
| 418 | instruments; permissible activity under certain circumstances; | 
| 419 | limitations.-- | 
| 420 | (3)  The fact that such bank or trust company or an | 
| 421 | affiliate of the bank or trust company owns or controls | 
| 422 | investment instruments shall not preclude the bank or trust | 
| 423 | company acting as a fiduciary from investing or reinvesting in | 
| 424 | such investment instruments, provided such investment | 
| 425 | instruments: | 
| 426 | (b)  When sold to accounts for which the bank or trust | 
| 427 | company is acting as a trustee of a trust as defined in s. | 
| 428 | 731.201 (37): | 
| 429 | 1.  Are available for sale to accounts of other customers; | 
| 430 | and | 
| 431 | 2.  If sold to other customers, are not sold to the trust | 
| 432 | accounts upon terms that are less favorable to the buyer than | 
| 433 | the terms upon which they are normally sold to the other | 
| 434 | customers. | 
| 435 | Section 20.  Paragraph (f) of subsection (5) of section | 
| 436 | 736.0802, Florida Statutes, is amended to read: | 
| 437 | 736.0802  Duty of loyalty.-- | 
| 438 | (5) | 
| 439 | (f)1.  The trustee of a trust as defined describedin s. | 
| 440 | 731.201 (37)may request authority to invest in investment | 
| 441 | instruments described in this subsection other than a qualified | 
| 442 | investment instrument, by providing to all qualified | 
| 443 | beneficiaries a written request containing the following: | 
| 444 | a.  The name, telephone number, street address, and mailing | 
| 445 | address of the trustee and of any individuals who may be | 
| 446 | contacted for further information. | 
| 447 | b.  A statement that the investment or investments cannot | 
| 448 | be made without the consent of a majority of each class of the | 
| 449 | qualified beneficiaries. | 
| 450 | c.  A statement that, if a majority of each class of | 
| 451 | qualified beneficiaries consent, the trustee will have the right | 
| 452 | to make investments in investment instruments, as defined in s. | 
| 453 | 660.25(6), which are owned or controlled by the trustee or its | 
| 454 | affiliate, or from which the trustee or its affiliate receives | 
| 455 | compensation for providing services in a capacity other than as | 
| 456 | trustee, that such investment instruments may include investment | 
| 457 | instruments sold primarily to trust accounts, and that the | 
| 458 | trustee or its affiliate may receive fees in addition to the | 
| 459 | trustee's compensation for administering the trust. | 
| 460 | d.  A statement that the consent may be withdrawn | 
| 461 | prospectively at any time by written notice given by a majority | 
| 462 | of any class of the qualified beneficiaries. | 
| 463 | 
 | 
| 464 | A statement by the trustee is not delivered if the statement is | 
| 465 | accompanied by another written communication other than a | 
| 466 | written communication by the trustee that refers only to the | 
| 467 | statement. | 
| 468 | 2.  For purposes of paragraph (e) and this paragraph: | 
| 469 | a.  "Majority of the qualified beneficiaries" means: | 
| 470 | (I)  If at the time the determination is made there are one | 
| 471 | or more beneficiaries as described in s. 736.0103(14)(c), at | 
| 472 | least a majority in interest of the beneficiaries described in | 
| 473 | s. 736.0103(14)(a), at least a majority in interest of the | 
| 474 | beneficiaries described in s. 736.0103(14)(b), and at least a | 
| 475 | majority in interest of the beneficiaries described in s. | 
| 476 | 736.0103(14)(c), if the interests of the beneficiaries are | 
| 477 | reasonably ascertainable; otherwise, a majority in number of | 
| 478 | each such class; or | 
| 479 | (II)  If there is no beneficiary as described in s. | 
| 480 | 736.0103(14)(c), at least a majority in interest of the | 
| 481 | beneficiaries described in s. 736.0103(14)(a) and at least a | 
| 482 | majority in interest of the beneficiaries described in s. | 
| 483 | 736.0103(14)(b), if the interests of the beneficiaries are | 
| 484 | reasonably ascertainable; otherwise, a majority in number of | 
| 485 | each such class. | 
| 486 | b.  "Qualified investment instrument" means a mutual fund, | 
| 487 | common trust fund, or money market fund described in and | 
| 488 | governed by s. 736.0816(3). | 
| 489 | c.  An irrevocable trust is created upon execution of the | 
| 490 | trust instrument. If a trust that was revocable when created | 
| 491 | thereafter becomes irrevocable, the irrevocable trust is created | 
| 492 | when the right of revocation terminates. | 
| 493 | Section 21.  Subsection (10) of section 895.02, Florida | 
| 494 | Statutes, is amended to read: | 
| 495 | 895.02  Definitions.--As used in ss. 895.01-895.08, the | 
| 496 | term: | 
| 497 | (10)  "Trustee" means any of the following: | 
| 498 | (a)  Any person acting as trustee pursuant to a trust | 
| 499 | established under s. 689.07 or s. 689.071 in which the trustee | 
| 500 | holds legal or record title to real property. | 
| 501 | (b)  Any person who holds legal or record title to real | 
| 502 | property in which any other person has a beneficial interest. | 
| 503 | (c)  Any successor trustee or trustees to any or all of the | 
| 504 | foregoing persons. | 
| 505 | 
 | 
| 506 | However, the term "trustee" does not include any person | 
| 507 | appointed or acting as a personal representative as defined in | 
| 508 | s. 731.201 (27)or appointed or acting as a trustee of any | 
| 509 | testamentary trust or as a trustee of any indenture of trust | 
| 510 | under which any bonds have been or are to be issued. | 
| 511 | Section 22.  This act shall take effect July 1, 2009. |