Florida Senate - 2013 SB 492
By Senator Hukill
8-00283A-13 2013492__
1 A bill to be entitled
2 An act relating to estates; amending s. 717.101, F.S.;
3 providing a definition; amending s. 717.112, F.S.;
4 providing an exception to property held by agents and
5 fiduciaries; creating s. 717.1125, F.S.; providing
6 that property held by fiduciaries under trust
7 instruments is presumed unclaimed under certain
8 circumstances; amending s. 731.110, F.S.; specifying
9 that a certain subsection does not require a caveator
10 to be served with formal notice of its own petition
11 for administration; amending s. 732.703, F.S.;
12 revising language regarding instruments governed by
13 the laws of a different state; creating s. 732.806,
14 F.S.; providing provisions relating to gifts to
15 lawyers and other disqualified persons; amending s.
16 732.901, F.S.; requiring the custodian of a will to
17 supply the testator’s date of death or the last four
18 digits of the testator’s social security number upon
19 deposit; providing that an original will submitted
20 with a pleading is considered to be deposited with the
21 clerk; requiring the clerk to retain and preserve the
22 original will in its original form for a certain
23 period of time; amending s. 736.0103, F.S.; providing
24 definitions; amending s. 736.0202, F.S.; providing for
25 in rem jurisdiction and personal jurisdiction over a
26 trustee, beneficiary, or other person; deleting a
27 provision referring to other methods of obtaining
28 jurisdiction; creating s. 736.02025, F.S.; providing
29 provisions for methods of service of process in
30 actions involving trusts and trust beneficiaries;
31 repealing s. 736.0205, F.S., relating to trust
32 proceedings and the dismissal of matters relating to
33 foreign trusts; repealing s. 736.0807(4), F.S.,
34 relating to delegation of powers by a trustee;
35 amending s. 736.0813, F.S.; clarifying the duties of a
36 trustee to provide a trust accounting; amending ss.
37 607.0802, 731.201, 733.212, 736.0802, 736.08125, and
38 738.104, F.S.; conforming cross-references; providing
39 an effective date.
40
41 Be It Enacted by the Legislature of the State of Florida:
42
43 Section 1. Present subsections (22) and (23) of section
44 717.101, Florida Statutes, are redesignated as subsections (23)
45 and (24), respectively, and a new subsection (22) is added to
46 that section, to read:
47 717.101 Definitions.—As used in this chapter, unless the
48 context otherwise requires:
49 (22) “Trust instrument” means a trust instrument as defined
50 in s. 736.0103.
51 Section 2. Subsection (1) of section 717.112, Florida
52 Statutes, is amended to read:
53 717.112 Property held by agents and fiduciaries.—
54 (1) Except as provided in ss. 717.1125 and 733.816, all
55 intangible property and any income or increment thereon held in
56 a fiduciary capacity for the benefit of another person is
57 presumed unclaimed unless the owner has within 5 years after it
58 has become payable or distributable increased or decreased the
59 principal, accepted payment of principal or income, communicated
60 concerning the property, or otherwise indicated an interest as
61 evidenced by a memorandum or other record on file with the
62 fiduciary.
63 Section 3. Section 717.1125, Florida Statutes, is created
64 to read:
65 717.1125 Property held by fiduciaries under trust
66 instruments.—All tangible and intangible property and any income
67 or increment thereon held in a fiduciary capacity for the
68 benefit of another person under a trust instrument is presumed
69 unclaimed unless the owner has, within 2 years after it has
70 become payable or distributable, increased or decreased the
71 principal, accepted payment of principal or income, communicated
72 concerning the property, or otherwise indicated an interest as
73 evidenced by a memorandum or other record on file with the
74 fiduciary.
75 Section 4. Subsection (3) of section 731.110, Florida
76 Statutes, is amended to read:
77 731.110 Caveat; proceedings.—
78 (3) If a caveat has been filed by an interested person
79 other than a creditor, the court may not admit a will of the
80 decedent to probate or appoint a personal representative until
81 formal notice of the petition for administration has been served
82 on the caveator or the caveator’s designated agent and the
83 caveator has had the opportunity to participate in proceedings
84 on the petition, as provided by the Florida Probate Rules. This
85 subsection does not require a caveator to be served with formal
86 notice of its own petition for administration.
87 Section 5. Subsection (4) of section 732.703, Florida
88 Statutes, is amended to read:
89 732.703 Effect of divorce, dissolution, or invalidity of
90 marriage on disposition of certain assets at death.—
91 (4) Subsection (2) does not apply:
92 (a) To the extent that controlling federal law provides
93 otherwise;
94 (b) If the governing instrument is signed by the decedent,
95 or on behalf of the decedent, after the order of dissolution or
96 order declaring the marriage invalid and such governing
97 instrument expressly provides that benefits will be payable to
98 the decedent’s former spouse;
99 (c) To the extent a will or trust governs the disposition
100 of the assets and s. 732.507(2) or s. 736.1105 736.1005 applies;
101 (d) If the order of dissolution or order declaring the
102 marriage invalid requires that the decedent acquire or maintain
103 the asset for the benefit of a former spouse or children of the
104 marriage, payable upon the death of the decedent either outright
105 or in trust, only if other assets of the decedent fulfilling
106 such a requirement for the benefit of the former spouse or
107 children of the marriage do not exist upon the death of the
108 decedent;
109 (e) If, under the terms of the order of dissolution or
110 order declaring the marriage invalid, the decedent could not
111 have unilaterally terminated or modified the ownership of the
112 asset, or its disposition upon the death of the decedent;
113 (f) If the designation of the decedent’s former spouse as a
114 beneficiary is irrevocable under applicable law;
115 (g) If the governing instrument directing the disposition
116 of the asset at death is governed by the laws of a state other
117 than this state;
118 (h) To an asset held in two or more names as to which the
119 death of one coowner vests ownership of the asset in the
120 surviving coowner or coowners;
121 (i) If the decedent remarries the person whose interest
122 would otherwise have been revoked under this section and the
123 decedent and that person are married to one another at the time
124 of the decedent’s death; or
125 (j) To state-administered retirement plans under chapter
126 121.
127 Section 6. Section 732.806, Florida Statutes, is created to
128 read:
129 732.806 Gifts to lawyers and other disqualified persons.—
130 (1) Any part of a written instrument which makes a gift to
131 a lawyer or a person related to the lawyer is void if the lawyer
132 prepared or supervised the execution of the written instrument,
133 or solicited the gift, unless the lawyer or other recipient of
134 the gift is related to the person making the gift.
135 (2) This section is not applicable to a provision in a
136 written instrument appointing a lawyer, or a person related to
137 the lawyer, as a fiduciary.
138 (3) A provision in a written instrument purporting to waive
139 the application of this section is unenforceable.
140 (4) If property distributed in kind, or a security interest
141 in that property, is acquired by a purchaser or lender for value
142 from a person who has received a gift in violation of this
143 section, the purchaser or lender takes title free of any claims
144 arising under this section and incurs no personal liability by
145 reason of this section, whether or not the gift is void under
146 this section.
147 (5) In all actions brought under this section, the court
148 must award taxable costs as in chancery actions, including
149 attorney fees. When awarding taxable costs and attorney fees
150 under this section, the court may direct payment from a party’s
151 interest in the estate or trust, or enter a judgment that may be
152 satisfied from other property of the party, or both. Attorney
153 fees and costs may not be awarded against a party who, in good
154 faith, initiates an action under this section to declare a gift
155 void.
156 (6) If a part of a written instrument is invalid by reason
157 of this section, the invalid part is severable and may not
158 affect any other part of the written instrument which can be
159 given effect, including a term that makes an alternate or
160 substitute gift. In the case of a power of appointment, this
161 section does not affect the power to appoint in favor of persons
162 other than the lawyer or a person related to the lawyer.
163 (7) For purposes of this section:
164 (a) A lawyer is deemed to have prepared, or supervised the
165 execution of, a written instrument if the preparation, or
166 supervision of the execution, of the written instrument was
167 performed by an employee or lawyer employed by the same firm as
168 the lawyer.
169 (b) A person is “related” to an individual if, at the time
170 the lawyer prepared or supervised the execution of the written
171 instrument or solicited the gift, the person is:
172 1. A spouse of the individual;
173 2. A lineal ascendant or descendant of the individual;
174 3. A sibling of the individual;
175 4. A relative of the individual or of the individual’s
176 spouse with whom the lawyer maintains a close, familial
177 relationship;
178 5. A spouse of a person described in subparagraph 2.,
179 subparagraph 3., or subparagraph 4.; or
180 6. A person who cohabitates with the individual.
181 (c) The term “written instrument” includes, but is not
182 limited to, a will, a trust, a deed, a document exercising a
183 power of appointment, or a beneficiary designation under a life
184 insurance contract or any other contractual arrangement that
185 creates an ownership interest or permits the naming of a
186 beneficiary.
187 (d) The term “gift” includes an inter vivos gift, a
188 testamentary transfer of real or personal property or any
189 interest therein, and the power to make such a transfer
190 regardless of whether the gift is outright or in trust;
191 regardless of when the transfer is to take effect; and
192 regardless of whether the power is held in a fiduciary or
193 nonfiduciary capacity.
194 (8) The rights and remedies granted in this section are in
195 addition to any other rights or remedies a person may have at
196 law or in equity.
197 Section 7. Section 732.901, Florida Statutes, is amended to
198 read:
199 732.901 Production of wills.—
200 (1) The custodian of a will must deposit the will with the
201 clerk of the court having venue of the estate of the decedent
202 within 10 days after receiving information that the testator is
203 dead. The custodian must supply the testator’s date of death or
204 the last four digits of the testator’s social security number to
205 the clerk upon deposit.
206 (2) Upon petition and notice, the custodian of any will may
207 be compelled to produce and deposit the will as provided in
208 subsection (1). All costs, damages, and a reasonable attorney’s
209 fee shall be adjudged to petitioner against the delinquent
210 custodian if the court finds that the custodian had no just or
211 reasonable cause for failing to deposit the will.
212 (3) An original will submitted to the clerk with a petition
213 or other pleading is deemed to have been deposited with the
214 clerk.
215 (4) Upon receipt, the clerk shall retain and preserve the
216 original will in its original form for at least 20 years. If the
217 probate of a will is initiated, the original will may be
218 maintained by the clerk with the other pleadings during the
219 pendency of the proceedings, but the will must at all times be
220 retained in its original form for the remainder of the 20-year
221 period whether or not the will is admitted to probate or the
222 proceedings are terminated. Transforming and storing a will on
223 film, microfilm, magnetic, electronic, optical, or other
224 substitute media or recording a will onto an electronic record
225 keeping system, whether or not in accordance with the standards
226 adopted by the Supreme Court of Florida, or permanently
227 recording a will does not eliminate the requirement to preserve
228 the original will.
229 (5) For purposes of this section, the term “will” includes
230 a separate writing as described in s. 732.515.
231 Section 8. Present subsections (6) through (11) of section
232 736.0103, Florida Statutes, are redesignated as subsections (7)
233 through (12), respectively, present subsections (12) through
234 (21) of that section are redesignated as subsections (14)
235 through (23), respectively, and new subsections (6) and (13) are
236 added to that section, to read:
237 736.0103 Definitions.—Unless the context otherwise
238 requires, in this code:
239 (6) “Distributee” means a beneficiary who is currently
240 entitled to receive a distribution.
241 (13) “Permissible distributee” means a beneficiary who is
242 currently eligible to receive a distribution.
243 Section 9. Section 736.0202, Florida Statutes, is amended
244 to read:
245 736.0202 Jurisdiction over trustee and beneficiary.—
246 (1) IN REM JURISDICTION.—Any beneficiary By accepting the
247 trusteeship of a trust having its principal place of
248 administration in this state is subject or by moving the
249 principal place of administration to this state, the trustee
250 submits personally to the jurisdiction of the courts of this
251 state to the extent of the beneficiary’s interest in regarding
252 any matter involving the trust.
253 (2) PERSONAL JURISDICTION.—
254 (a) Any trustee, trust beneficiary, or other person,
255 whether or not a citizen or resident of this state, who
256 personally or through an agent does any of the following acts
257 related to a trust, submits to the jurisdiction of the courts of
258 this state involving that trust: With respect to their interests
259 in the trust, the beneficiaries of a trust having its principal
260 place of administration in this state are subject to the
261 jurisdiction of the courts of this state regarding any matter
262 involving the trust. By accepting a distribution from such a
263 trust, the recipient submits personally to the jurisdiction of
264 the courts of this state regarding any matter involving the
265 distribution.
266 1. Accepts trusteeship of a trust having its principal
267 place of administration in this state at the time of acceptance.
268 2. Moves the principal place of administration of a trust
269 to this state.
270 3. Serves as trustee of a trust created by a settlor who
271 was a resident of this state at the time of creation of the
272 trust or serves as trustee of a trust having its principal place
273 of administration in this state.
274 4. Accepts or exercises a delegation of powers or duties
275 from the trustee of a trust having its principal place of
276 administration in this state.
277 5. Commits a breach of trust in this state, or commits a
278 breach of trust with respect to a trust having its principal
279 place of administration in this state at the time of the breach.
280 6. Accepts compensation from a trust having its principal
281 place of administration in this state.
282 7. Performs any act or service for a trust having its
283 principal place of administration in this state.
284 8. Accepts a distribution from a trust having its principal
285 place of administration in this state with respect to any matter
286 involving the distribution.
287 (b) A court of this state may exercise personal
288 jurisdiction over a trustee, trust beneficiary, or other person,
289 whether found within or outside the state, to the maximum extent
290 permitted by the State Constitution or the Federal Constitution.
291 (3) This section does not preclude other methods of
292 obtaining jurisdiction over a trustee, beneficiary, or other
293 person receiving property from the trust.
294 Section 10. Section 736.02025, Florida Statutes, is created
295 to read:
296 736.02025 Service of process.—
297 (1) Except as otherwise provided in this section, service
298 of process upon any person may be made as provided in chapter
299 48.
300 (2) Where only in rem or quasi in rem relief is sought
301 against a person in a matter involving a trust, service of
302 process on that person may be made by sending a copy of the
303 summons and complaint by any commercial delivery service
304 requiring a signed receipt or by any form of mail requiring a
305 signed receipt. Service under this subsection shall be complete
306 upon signing of a receipt by the addressee or by any person
307 authorized to receive service of a summons on behalf of the
308 addressee as provided in chapter 48. Proof of service shall be
309 by verified statement of the person serving the summons, to
310 which must be attached the signed receipt or other evidence
311 satisfactory to the court that delivery was made to the
312 addressee or other authorized person.
313 (3) Under any of the following circumstances, service of
314 original process pursuant to subsection (2) may be made by
315 first-class mail:
316 (a) If registered or certified mail service to the
317 addressee is unavailable and if delivery by commercial delivery
318 service is also unavailable.
319 (b) If delivery is attempted and is refused by the
320 addressee.
321 (c) If delivery by mail requiring a signed receipt is
322 unclaimed after notice to the addressee by the delivering
323 entity.
324 (4) If service of process is obtained under subsection (3),
325 proof of service shall be made by verified statement of the
326 person serving the summons. The verified statement must state
327 the basis for service by first-class mail, the date of mailing,
328 and the address to which the mail was sent.
329 Section 11. Section 736.0205, Florida Statutes, is
330 repealed.
331 Section 12. Subsection (4) of section 736.0807, Florida
332 Statutes, is repealed.
333 Section 13. Paragraph (d) of subsection (1) of section
334 736.0813, Florida Statutes, is amended to read:
335 736.0813 Duty to inform and account.—The trustee shall keep
336 the qualified beneficiaries of the trust reasonably informed of
337 the trust and its administration.
338 (1) The trustee’s duty to inform and account includes, but
339 is not limited to, the following:
340 (d) A trustee of an irrevocable trust shall provide a trust
341 accounting, as set forth in s. 736.08135, from the date of the
342 last accounting or, if none, from the date on which the trustee
343 became accountable, to each qualified beneficiary at least
344 annually and on termination of the trust or on change of the
345 trustee.
346
347 Paragraphs (a) and (b) do not apply to an irrevocable trust
348 created before the effective date of this code, or to a
349 revocable trust that becomes irrevocable before the effective
350 date of this code. Paragraph (a) does not apply to a trustee who
351 accepts a trusteeship before the effective date of this code.
352 Section 14. Subsection (2) of section 607.0802, Florida
353 Statutes, is amended to read:
354 607.0802 Qualifications of directors.—
355 (2) In the event that the eligibility to serve as a member
356 of the board of directors of a condominium association,
357 cooperative association, homeowners’ association, or mobile home
358 owners’ association is restricted to membership in such
359 association and membership is appurtenant to ownership of a
360 unit, parcel, or mobile home, a grantor of a trust described in
361 s. 733.707(3), or a qualified beneficiary as defined in s.
362 736.0103(14) of a trust which owns a unit, parcel, or mobile
363 home shall be deemed a member of the association and eligible to
364 serve as a director of the condominium association, cooperative
365 association, homeowners’ association, or mobile home owners’
366 association, provided that said beneficiary occupies the unit,
367 parcel, or mobile home.
368 Section 15. Subsections (2) and (11) of section 731.201,
369 Florida Statutes, are amended to read:
370 731.201 General definitions.—Subject to additional
371 definitions in subsequent chapters that are applicable to
372 specific chapters or parts, and unless the context otherwise
373 requires, in this code, in s. 409.9101, and in chapters 736,
374 738, 739, and 744, the term:
375 (2) “Beneficiary” means heir at law in an intestate estate
376 and devisee in a testate estate. The term “beneficiary” does not
377 apply to an heir at law or a devisee after that person’s
378 interest in the estate has been satisfied. In the case of a
379 devise to an existing trust or trustee, or to a trust or trustee
380 described by will, the trustee is a beneficiary of the estate.
381 Except as otherwise provided in this subsection, the beneficiary
382 of the trust is not a beneficiary of the estate of which that
383 trust or the trustee of that trust is a beneficiary. However, if
384 each trustee is also a personal representative of the estate,
385 each qualified beneficiary of the trust as defined in s.
386 736.0103(14) shall be regarded as a beneficiary of the estate.
387 (11) “Devisee” means a person designated in a will or trust
388 to receive a devise. Except as otherwise provided in this
389 subsection, in the case of a devise to an existing trust or
390 trustee, or to a trust or trustee of a trust described by will,
391 the trust or trustee, rather than the beneficiaries of the
392 trust, is the devisee. However, if each trustee is also a
393 personal representative of the estate, each qualified
394 beneficiary of the trust as defined in s. 736.0103(14) shall be
395 regarded as a devisee.
396 Section 16. Subsection (1) of section 733.212, Florida
397 Statutes, is amended to read:
398 733.212 Notice of administration; filing of objections.—
399 (1) The personal representative shall promptly serve a copy
400 of the notice of administration on the following persons who are
401 known to the personal representative:
402 (a) The decedent’s surviving spouse;
403 (b) Beneficiaries;
404 (c) The trustee of any trust described in s. 733.707(3) and
405 each qualified beneficiary of the trust as defined in s.
406 736.0103(14), if each trustee is also a personal representative
407 of the estate; and
408 (d) Persons who may be entitled to exempt property
409
410 in the manner provided for service of formal notice, unless
411 served under s. 733.2123. The personal representative may
412 similarly serve a copy of the notice on any devisees under a
413 known prior will or heirs or others who claim or may claim an
414 interest in the estate.
415 Section 17. Paragraph (f) of subsection (5) of section
416 736.0802, Florida Statutes, is amended to read:
417 736.0802 Duty of loyalty.—
418 (5)
419 (f)1. The trustee of a trust as defined in s. 731.201 may
420 request authority to invest in investment instruments described
421 in this subsection other than a qualified investment instrument,
422 by providing to all qualified beneficiaries a written request
423 containing the following:
424 a. The name, telephone number, street address, and mailing
425 address of the trustee and of any individuals who may be
426 contacted for further information.
427 b. A statement that the investment or investments cannot be
428 made without the consent of a majority of each class of the
429 qualified beneficiaries.
430 c. A statement that, if a majority of each class of
431 qualified beneficiaries consent, the trustee will have the right
432 to make investments in investment instruments, as defined in s.
433 660.25(6), which are owned or controlled by the trustee or its
434 affiliate, or from which the trustee or its affiliate receives
435 compensation for providing services in a capacity other than as
436 trustee, that such investment instruments may include investment
437 instruments sold primarily to trust accounts, and that the
438 trustee or its affiliate may receive fees in addition to the
439 trustee’s compensation for administering the trust.
440 d. A statement that the consent may be withdrawn
441 prospectively at any time by written notice given by a majority
442 of any class of the qualified beneficiaries.
443
444 A statement by the trustee is not delivered if the statement is
445 accompanied by another written communication other than a
446 written communication by the trustee that refers only to the
447 statement.
448 2. For purposes of paragraph (e) and this paragraph:
449 a. “Majority of the qualified beneficiaries” means:
450 (I) If at the time the determination is made there are one
451 or more beneficiaries as described in s. 736.0103(16)(c)
452 736.0103(14)(c), at least a majority in interest of the
453 beneficiaries described in s. 736.0103(16)(a) 736.0103(14)(a),
454 at least a majority in interest of the beneficiaries described
455 in s. 736.0103(16)(b) 736.0103(14)(b), and at least a majority
456 in interest of the beneficiaries described in s. 736.0103(16)(c)
457 736.0103(14)(c), if the interests of the beneficiaries are
458 reasonably ascertainable; otherwise, a majority in number of
459 each such class; or
460 (II) If there is no beneficiary as described in s.
461 736.0103(16)(c) 736.0103(14)(c), at least a majority in interest
462 of the beneficiaries described in s. 736.0103(16)(a)
463 736.0103(14)(a) and at least a majority in interest of the
464 beneficiaries described in s. 736.0103(16)(b) 736.0103(14)(b),
465 if the interests of the beneficiaries are reasonably
466 ascertainable; otherwise, a majority in number of each such
467 class.
468 b. “Qualified investment instrument” means a mutual fund,
469 common trust fund, or money market fund described in and
470 governed by s. 736.0816(3).
471 c. An irrevocable trust is created upon execution of the
472 trust instrument. If a trust that was revocable when created
473 thereafter becomes irrevocable, the irrevocable trust is created
474 when the right of revocation terminates.
475 Section 18. Paragraph (a) of subsection (2) of section
476 736.08125, Florida Statutes, is amended to read:
477 736.08125 Protection of successor trustees.—
478 (2) For the purposes of this section, the term:
479 (a) “Eligible beneficiaries” means:
480 1. At the time the determination is made, if there are one
481 or more beneficiaries as described in s. 736.0103(16)(c)
482 736.0103(14)(c), the beneficiaries described in s.
483 736.0103(16)(a) 736.0103(14)(a) and (c); or
484 2. If there is no beneficiary as described in s.
485 736.0103(16)(c) 736.0103(14)(c), the beneficiaries described in
486 s. 736.0103(16)(a) 736.0103(14)(a) and (b).
487 Section 19. Paragraph (d) of subsection (9) of section
488 738.104, Florida Statutes, is amended to read:
489 738.104 Trustee’s power to adjust.—
490 (9)
491 (d) For purposes of subsection (8) and this subsection, the
492 term:
493 1. “Eligible beneficiaries” means:
494 a. If at the time the determination is made there are one
495 or more beneficiaries described in s. 736.0103(16)(c)
496 736.0103(14)(c), the beneficiaries described in s.
497 736.0103(16)(a) 736.0103(14)(a) and (c); or
498 b. If there is no beneficiary described in s.
499 736.0103(16)(c) 736.0103(14)(c), the beneficiaries described in
500 s. 736.0103(16)(a) 736.0103(14)(a) and (b).
501 2. “Super majority of the eligible beneficiaries” means:
502 a. If at the time the determination is made there are one
503 or more beneficiaries described in s. 736.0103(16)(c)
504 736.0103(14)(c), at least two-thirds in interest of the
505 beneficiaries described in s. 736.0103(16)(a) 736.0103(14)(a) or
506 two-thirds in interest of the beneficiaries described in s.
507 736.0103(16)(c) 736.0103(14)(c), if the interests of the
508 beneficiaries are reasonably ascertainable; otherwise, it means
509 two-thirds in number of either such class; or
510 b. If there is no beneficiary described in s.
511 736.0103(16)(c) 736.0103(14)(c), at least two-thirds in interest
512 of the beneficiaries described in s. 736.0103(16)(a)
513 736.0103(14)(a) or two-thirds in interest of the beneficiaries
514 described in s. 736.0103(16)(b) 736.0103(14)(b), if the
515 interests of the beneficiaries are reasonably ascertainable,
516 otherwise, two-thirds in number of either such class.
517 Section 20. This act shall take effect October 1, 2013.