| 1 | A bill to be entitled |
| 2 | An act relating to trust administration; amending s. |
| 3 | 733.607, F.S.; limiting a personal representative's |
| 4 | entitlement to payment from a trust of certain estate |
| 5 | expenses and obligations; specifying application of |
| 6 | certain criteria in making certain payments from a trust; |
| 7 | amending s. 733.707, F.S.; specifying application of |
| 8 | additional provisions to liability for certain estate |
| 9 | expense and obligation payments from a trust; amending s. |
| 10 | 736.0206, F.S.; deleting certain notice requirements |
| 11 | relating to court review of a trustee's employment of |
| 12 | certain persons; authorizing the award of expert witness |
| 13 | fees from trust assets rather than requiring the award of |
| 14 | such fees; providing a limitation; creating s. 736.04114, |
| 15 | F.S.; providing authority for court interpretation of |
| 16 | certain trusts not subject to the federal estate tax; |
| 17 | specifying trust provision requirements; providing |
| 18 | conditions; providing definitions; providing criteria for |
| 19 | court interpretation of a trust; providing an exception; |
| 20 | authorizing a trustee to take certain actions pending a |
| 21 | determination of trust distribution; limiting trustee |
| 22 | liability; preserving certain rights to construe a trust; |
| 23 | providing for retroactive operation; amending s. 736.0505, |
| 24 | F.S.; revising a value criterion for determining the |
| 25 | extent of treating the holder of a power of withdrawal as |
| 26 | the settlor of a trust; providing criteria for determining |
| 27 | who contributed certain trust assets under certain |
| 28 | circumstances; amending s. 736.05053, F.S.; requiring |
| 29 | application of priorities for pro rata abatement of |
| 30 | nonresiduary trust dispositions together with nonresiduary |
| 31 | devises; amending s. 736.1007, F.S.; deleting authority |
| 32 | for a court to determine an attorney's compensation; |
| 33 | deleting certain expert testimony and fee payment |
| 34 | provisions; deleting requirements for certain court |
| 35 | compensation determination proceedings to be part of a |
| 36 | trust administration process and for court determination |
| 37 | and payment of certain estate costs and fees from trust |
| 38 | assets; providing an effective date. |
| 39 |
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| 40 | Be It Enacted by the Legislature of the State of Florida: |
| 41 |
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| 42 | Section 1. Subsection (2) of section 733.607, Florida |
| 43 | Statutes, is amended to read: |
| 44 | 733.607 Possession of estate.- |
| 45 | (2) If, after providing for statutory entitlements and all |
| 46 | devises other than residuary devises, the assets of the |
| 47 | decedent's estate are insufficient to pay the expenses of the |
| 48 | administration and obligations of the decedent's estate, the |
| 49 | personal representative is entitled to payment from the trustee |
| 50 | of a trust described in s. 733.707(3), in the amount the |
| 51 | personal representative certifies in writing to be required to |
| 52 | satisfy the insufficiency, subject to the exclusions and |
| 53 | preferences under s. 736.05053. The provisions of s. 733.805 |
| 54 | shall apply in determining the amount of any payment required by |
| 55 | this section. |
| 56 | Section 2. Subsection (3) of section 733.707, Florida |
| 57 | Statutes, is amended to read: |
| 58 | 733.707 Order of payment of expenses and obligations.- |
| 59 | (3) Any portion of a trust with respect to which a |
| 60 | decedent who is the grantor has at the decedent's death a right |
| 61 | of revocation, as defined in paragraph (e), either alone or in |
| 62 | conjunction with any other person, is liable for the expenses of |
| 63 | the administration and obligations of the decedent's estate to |
| 64 | the extent the decedent's estate is insufficient to pay them as |
| 65 | provided in ss. s. 733.607(2) and 736.05053. |
| 66 | (a) For purposes of this subsection, any trusts |
| 67 | established as part of, and all payments from, either an |
| 68 | employee annuity described in s. 403 of the Internal Revenue |
| 69 | Code of 1986, as amended, an Individual Retirement Account, as |
| 70 | described in s. 408 of the Internal Revenue Code of 1986, as |
| 71 | amended, a Keogh (HR-10) Plan, or a retirement or other plan |
| 72 | established by a corporation which is qualified under s. 401 of |
| 73 | the Internal Revenue Code of 1986, as amended, shall not be |
| 74 | considered a trust over which the decedent has a right of |
| 75 | revocation. |
| 76 | (b) For purposes of this subsection, any trust described |
| 77 | in s. 664 of the Internal Revenue Code of 1986, as amended, |
| 78 | shall not be considered a trust over which the decedent has a |
| 79 | right of revocation. |
| 80 | (c) This subsection shall not impair any rights an |
| 81 | individual has under a qualified domestic relations order as |
| 82 | that term is defined in s. 414(p) of the Internal Revenue Code |
| 83 | of 1986, as amended. |
| 84 | (d) For purposes of this subsection, property held or |
| 85 | received by a trust to the extent that the property would not |
| 86 | have been subject to claims against the decedent's estate if it |
| 87 | had been paid directly to a trust created under the decedent's |
| 88 | will or other than to the decedent's estate, or assets received |
| 89 | from any trust other than a trust described in this subsection, |
| 90 | shall not be deemed assets of the trust available to the |
| 91 | decedent's estate. |
| 92 | (e) For purposes of this subsection, a "right of |
| 93 | revocation" is a power retained by the decedent, held in any |
| 94 | capacity, to: |
| 95 | 1. Amend or revoke the trust and revest the principal of |
| 96 | the trust in the decedent; or |
| 97 | 2. Withdraw or appoint the principal of the trust to or |
| 98 | for the decedent's benefit. |
| 99 | Section 3. Subsections (1), (5), (6), and (7) of section |
| 100 | 736.0206, Florida Statutes, are amended to read: |
| 101 | 736.0206 Proceedings for review of employment of agents |
| 102 | and review of compensation of trustee and employees of trust.- |
| 103 | (1) After notice to all interested persons, The court may |
| 104 | review the propriety of the employment by a trustee of any |
| 105 | person, including any attorney, auditor, investment adviser, or |
| 106 | other specialized agent or assistant, and the reasonableness of |
| 107 | any compensation paid to that person or to the trustee. |
| 108 | (5) The court may determine reasonable compensation for a |
| 109 | trustee or any person employed by a trustee without receiving |
| 110 | expert testimony. Any party may offer expert testimony after |
| 111 | notice to interested persons. If expert testimony is offered, a |
| 112 | reasonable expert witness fee may shall be awarded by the court |
| 113 | and paid from the assets of the trust unless the court finds |
| 114 | that the expert testimony did not assist the court. The court |
| 115 | shall direct from which part of the trust assets the fee shall |
| 116 | be paid. |
| 117 | (6) Persons given notice as provided in this section shall |
| 118 | be bound by all orders entered on the complaint. |
| 119 | (6)(7) In a proceeding pursuant to subsection (2), the |
| 120 | petitioner may serve formal notice as provided in the Florida |
| 121 | Probate Rules, and such notice shall be sufficient for the court |
| 122 | to acquire jurisdiction over the person receiving the notice to |
| 123 | the extent of the person's interest in the trust. |
| 124 | Section 4. Section 736.04114, Florida Statutes, is created |
| 125 | to read: |
| 126 | 736.04114 Limited judicial construction of irrevocable |
| 127 | trust with federal tax provisions.- |
| 128 | (1) Upon the application of a trustee or any qualified |
| 129 | beneficiary of a trust, a court at any time may construe the |
| 130 | terms of a trust that is not then revocable to define the |
| 131 | respective shares or determine beneficiaries, in accordance with |
| 132 | the intention of the settlor, if a disposition occurs during the |
| 133 | applicable period and the trust contains a provision that: |
| 134 | (a) Includes a formula disposition referring to the terms |
| 135 | "unified credit," "estate tax exemption," "applicable exemption |
| 136 | amount," "applicable credit amount," "applicable exclusion |
| 137 | amount," "generation-skipping transfer tax exemption" or "GST |
| 138 | exemption," "marital deduction," "maximum marital deduction," |
| 139 | "unlimited marital deduction," or "maximum charitable |
| 140 | deduction"; |
| 141 | (b) Measures a share of a trust based on the amount that |
| 142 | may pass free of federal estate tax or the amount that may pass |
| 143 | free of federal generation-skipping transfer tax; |
| 144 | (c) Otherwise makes a disposition referring to a |
| 145 | charitable deduction, marital deduction, or another provision of |
| 146 | federal estate tax law or federal generation-skipping transfer |
| 147 | tax law; or |
| 148 | (d) Appears to be intended to reduce or minimize the |
| 149 | federal estate tax or generation-skipping transfer tax. |
| 150 | (2) For purposes of this section: |
| 151 | (a) "Applicable period" means a period beginning January |
| 152 | 1, 2010, and ending at the end of the day on the earlier of |
| 153 | December 31, 2010, or the day before the date that an act |
| 154 | becomes a law that repeals or otherwise modifies or has the |
| 155 | effect of repealing or modifying s. 901 of The Economic Growth |
| 156 | and Tax Relief Reconciliation Act of 2001. |
| 157 | (b) A disposition occurs when an interest takes effect in |
| 158 | possession or enjoyment. |
| 159 | (3) In construing the trust, the court shall consider the |
| 160 | terms and purposes of the trust, the facts and circumstances |
| 161 | surrounding the creation of the trust, and the settlor's |
| 162 | probable intent. In determining the settlor's probable intent, |
| 163 | the court may consider evidence relevant to the settlor's intent |
| 164 | even though the evidence contradicts an apparent plain meaning |
| 165 | of the trust instrument. |
| 166 | (4) This section does not apply to a disposition that is |
| 167 | specifically conditioned upon no federal estate tax or federal |
| 168 | generation-skipping transfer tax being imposed. |
| 169 | (5)(a) Unless otherwise ordered by the court, during the |
| 170 | applicable period and without court order, the trustee |
| 171 | administering a trust containing one or more provisions |
| 172 | described in subsection (1) may: |
| 173 | 1. Delay or refrain from making any distribution. |
| 174 | 2. Incur and pay fees and costs reasonably necessary to |
| 175 | determine the trustee's duties and obligations, including, but |
| 176 | not limited to, compliance with provisions of existing and |
| 177 | reasonably anticipated future federal tax laws. |
| 178 | 3. Establish and maintain reserves for the payment of fees |
| 179 | and costs and federal taxes. |
| 180 | (b) The trustee shall not be liable for its actions as |
| 181 | provided in this subsection if such actions are made or taken in |
| 182 | good faith. |
| 183 | (6) The provisions of this section are in addition to, and |
| 184 | not in derogation of, rights under this code or the common law |
| 185 | to construe a trust. |
| 186 | (7) This section is remedial in nature and intended to |
| 187 | provide a new or modified legal remedy. This section shall |
| 188 | operate retroactively to January 1, 2010. |
| 189 | Section 5. Paragraph (b) of subsection (2) of section |
| 190 | 736.0505, Florida Statutes, is amended, and subsection (3) is |
| 191 | added to that section, to read: |
| 192 | 736.0505 Creditors' claims against settlor.- |
| 193 | (2) For purposes of this section: |
| 194 | (b) Upon the lapse, release, or waiver of the power, the |
| 195 | holder is treated as the settlor of the trust only to the extent |
| 196 | the value of the property affected by the lapse, release, or |
| 197 | waiver exceeds the greater of the amount specified in: |
| 198 | 1. Section 2041(b)(2) or s. 2514(e); or |
| 199 | 2. Section 2503(b) and, if the donor was married at the |
| 200 | time of the transfer to which the power of withdrawal applies, |
| 201 | twice the amount specified in s. 2503(b), |
| 202 |
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| 203 | of the Internal Revenue Code of 1986, as amended. |
| 204 | (3) Subject to the provisions of s. 726.105, for purposes |
| 205 | of this section, the assets in: |
| 206 | (a) A trust described in s. 2523(e) of the Internal |
| 207 | Revenue Code of 1986, as amended, or a trust for which the |
| 208 | election described in s. 2523(f) of the Internal Revenue Code of |
| 209 | 1986, as amended, has been made; and |
| 210 | (b) Another trust, to the extent that the assets in the |
| 211 | other trust are attributable to a trust described in paragraph |
| 212 | (a), |
| 213 |
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| 214 | shall, after the death of the settlor's spouse, be deemed to |
| 215 | have been contributed by the settlor's spouse and not by the |
| 216 | settlor. |
| 217 | Section 6. Subsection (5) is added to section 736.05053, |
| 218 | Florida Statutes, to read: |
| 219 | 736.05053 Trustee's duty to pay expenses and obligations |
| 220 | of settlor's estate.- |
| 221 | (5) Nonresiduary trust dispositions shall abate pro rata |
| 222 | with nonresiduary devises pursuant to the priorities specified |
| 223 | in this section and s. 733.805, determined as if the |
| 224 | beneficiaries of the will and trust, other than the estate or |
| 225 | trust itself, were taking under a common instrument. |
| 226 | Section 7. Subsections (7) through (10) of section |
| 227 | 736.1007, Florida Statutes, are amended to read: |
| 228 | 736.1007 Trustee's attorney's fees.- |
| 229 | (7) The court may determine reasonable attorney's |
| 230 | compensation without receiving expert testimony. Any party may |
| 231 | offer expert testimony after notice to interested persons. If |
| 232 | expert testimony is offered, an expert witness fee may be |
| 233 | awarded by the court and paid from the assets of the trust. The |
| 234 | court shall direct from what part of the trust the fee is to be |
| 235 | paid. |
| 236 | (7)(8) If a separate written agreement regarding |
| 237 | compensation exists between the attorney and the settlor, the |
| 238 | attorney shall furnish a copy to the trustee prior to |
| 239 | commencement of employment and, if employed, shall promptly file |
| 240 | and serve a copy on all interested persons. A separate agreement |
| 241 | or a provision in the trust suggesting or directing the trustee |
| 242 | to retain a specific attorney does not obligate the trustee to |
| 243 | employ the attorney or obligate the attorney to accept the |
| 244 | representation but, if the attorney who is a party to the |
| 245 | agreement or who drafted the trust is employed, the compensation |
| 246 | paid shall not exceed the compensation provided in the |
| 247 | agreement. |
| 248 | (9) Court proceedings to determine compensation, if |
| 249 | required, are a part of the trust administration process, and |
| 250 | the costs, including fees for the trustee's attorney, shall be |
| 251 | determined by the court and paid from the assets of the trust |
| 252 | unless the court finds the attorney's fees request to be |
| 253 | substantially unreasonable. The court shall direct from what |
| 254 | part of the trust the fees are to be paid. |
| 255 | (8)(10) As used in this section, the term "initial trust |
| 256 | administration" means administration of a revocable trust during |
| 257 | the period that begins with the death of the settlor and ends on |
| 258 | the final distribution of trust assets outright or to continuing |
| 259 | trusts created under the trust agreement but, if an estate tax |
| 260 | return is required, not until after issuance of an estate tax |
| 261 | closing letter or other evidence of termination of the estate |
| 262 | tax proceeding. This initial period is not intended to include |
| 263 | continued regular administration of the trust. |
| 264 | Section 8. This act shall take effect July 1, 2010. |