ENROLLED
       2022 Legislature                   CS for SB 1368, 1st Engrossed
       
       
       
       
       
       
                                                             20221368er
    1  
    2         An act relating to trusts; amending s. 689.225, F.S.;
    3         revising criteria for application of the rule against
    4         perpetuities to trusts created on or after a specified
    5         date; amending s. 736.0105, F.S.; specifying that the
    6         terms of a trust do not prevail over a trustee’s duty
    7         to account to qualified beneficiaries under certain
    8         circumstances; amending s. 736.0109, F.S.; clarifying
    9         circumstances under which notice, or the sending of a
   10         document, to a person under the Florida Trust Code is
   11         deemed satisfied; authorizing certain trust companies
   12         that are trustees to use specified methods for
   13         providing notice or sending a document; specifying
   14         when such notice or document is deemed sent; amending
   15         s. 736.0303, F.S.; specifying circumstances under
   16         which a parent may represent and bind the unborn
   17         descendants of his or her unborn child or the minor or
   18         unborn descendants of his or her minor child; amending
   19         s. 736.0409, F.S.; revising the timeframe for which
   20         certain noncharitable trusts may be enforced; amending
   21         ss. 736.04115 and 736.0412, F.S.; conforming
   22         provisions to changes made by the act; amending s.
   23         736.0813, F.S.; providing that the terms of a trust
   24         may permit for accounting to the qualified
   25         beneficiaries only under certain circumstances;
   26         providing construction; amending s. 736.08135, F.S.;
   27         providing an alternate procedure for trust accountings
   28         for specified trustees under certain circumstances;
   29         specifying requirements and applicability; amending s.
   30         736.08145, F.S.; clarifying the application of law
   31         governing grantor trust reimbursement; providing an
   32         effective date.
   33          
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Paragraph (f) of subsection (2) of section
   37  689.225, Florida Statutes, is amended, and paragraph (g) is
   38  added to that subsection, to read:
   39         689.225 Statutory rule against perpetuities.—
   40         (2) STATEMENT OF THE RULE.—
   41         (f) As to any trust created after December 31, 2000,
   42  through June 30, 2022, this section shall apply to a nonvested
   43  property interest or power of appointment contained in a trust
   44  by substituting 360 years in place of “90 years” in each place
   45  such term appears in this section unless the terms of the trust
   46  require that all beneficial interests in the trust vest or
   47  terminate within a lesser period.
   48         (g) As to any trust created on or after July 1, 2022, this
   49  section shall apply to a nonvested property interest or power of
   50  appointment contained in a trust by substituting 1,000 years in
   51  place of “90 years” in each place such term appears in this
   52  section unless the terms of the trust require that all
   53  beneficial interests in the trust vest or terminate within a
   54  lesser period.
   55         Section 2. Paragraph (s) of subsection (2) of section
   56  736.0105, Florida Statutes, is amended to read:
   57         736.0105 Default and mandatory rules.—
   58         (2) The terms of a trust prevail over any provision of this
   59  code except:
   60         (s) The duty under s. 736.0813(1)(c) and (d) to provide a
   61  complete copy of the trust instrument and to account to
   62  qualified beneficiaries except as otherwise provided in s.
   63  736.0813(1)(d).
   64         Section 3. Present subsections (4), (5), and (6) of section
   65  736.0109, Florida Statutes, are redesignated as subsections (5),
   66  (6), and (7), respectively, a new subsection (4) is added to
   67  that section, and subsection (1) and present subsection (4) of
   68  that section are amended, to read:
   69         736.0109 Methods and waiver of notice.—
   70         (1) Notice to a person under this code or the sending of a
   71  document to a person under this code must be accomplished in a
   72  manner reasonably suitable under the circumstances and likely to
   73  result in receipt of the notice or document. Permissible methods
   74  of notice or for sending a document include first-class mail,
   75  personal delivery, delivery to the person’s last known place of
   76  residence or place of business, a properly directed facsimile or
   77  other electronic message, including e-mail, or posting on a
   78  secure electronic account or website in accordance with
   79  subsection (3).
   80         (4) Notwithstanding subsection (3), a family trust company,
   81  licensed family trust company, or foreign licensed family trust
   82  company, as defined in s. 662.111, that is a trustee of a trust
   83  may use any permissible method for providing notice or for
   84  sending a document specified in subsection (1) or may send a
   85  properly directed e-mail that contains an attached notice or
   86  document or contains a hyperlink through which the recipient can
   87  view the notice or document as a permissible method of providing
   88  notice or sending a document. For purposes of this subsection,
   89  such notice or document sent by e-mail is deemed to have been
   90  sent if any username, password, or other specific instructions
   91  needed to access the notice or document are communicated to the
   92  recipient beforehand or contemporaneously with the sending of
   93  the e-mail message containing the notice, document, or
   94  hyperlink, or upon the request of the recipient.
   95         (5)(4) Notice to a person under this code, or the sending
   96  of a document to a person under this code electronically by
   97  electronic message, is complete when the document is sent.
   98         (a) An electronic message is presumed received on the date
   99  that the message is sent.
  100         (b) If the sender has knowledge that an electronic message
  101  did not reach the recipient, the electronic message is deemed to
  102  have not been received. The sender has the burden to prove that
  103  another copy of the notice or document was sent by electronic
  104  message or by other means authorized by this section.
  105         Section 4. Subsection (5) of section 736.0303, Florida
  106  Statutes, is amended to read:
  107         736.0303 Representation by fiduciaries and parents.—To the
  108  extent there is no conflict of interest between the
  109  representative and the person represented or among those being
  110  represented with respect to a particular question or dispute:
  111         (5) A parent may represent and bind the parent’s unborn
  112  child and the unborn descendants of such unborn child, or the
  113  parent’s minor child and the minor or unborn descendants of such
  114  minor child, if a guardian of the property for the unborn child,
  115  minor child, or such child’s descendants has not been appointed.
  116         Section 5. Subsection (1) of section 736.0409, Florida
  117  Statutes, is amended to read:
  118         736.0409 Noncharitable trust without ascertainable
  119  beneficiary.—Except as otherwise provided in s. 736.0408 or by
  120  another provision of law, the following rules apply:
  121         (1) A trust may be created for a noncharitable purpose
  122  without a definite or definitely ascertainable beneficiary or
  123  for a noncharitable but otherwise valid purpose to be selected
  124  by the trustee. The trust may not be enforced for more than
  125  1,000 21 years.
  126         Section 6. Paragraph (b) of subsection (3) of section
  127  736.04115, Florida Statutes, is amended to read:
  128         736.04115 Judicial modification of irrevocable trust when
  129  modification is in best interests of beneficiaries.—
  130         (3) This section shall not apply to:
  131         (b) Any trust created after December 31, 2000, if:
  132         1. Under the terms of the trust, all beneficial interests
  133  in the trust must vest or terminate within the period prescribed
  134  by the rule against perpetuities in s. 689.225(2),
  135  notwithstanding s. 689.225(2)(f) and (g).
  136         2. The terms of the trust expressly prohibit judicial
  137  modification.
  138         Section 7. Paragraph (b) of subsection (4) of section
  139  736.0412, Florida Statutes, is amended to read:
  140         736.0412 Nonjudicial modification of irrevocable trust.—
  141         (4) This section shall not apply to:
  142         (b) Any trust created after December 31, 2000, if, under
  143  the terms of the trust, all beneficial interests in the trust
  144  must vest or terminate within the period prescribed by the rule
  145  against perpetuities in s. 689.225(2), notwithstanding s.
  146  689.225(2)(f) and (g), unless the terms of the trust expressly
  147  authorize nonjudicial modification.
  148         Section 8. Paragraph (d) of subsection (1) of section
  149  736.0813, Florida Statutes, is amended to read:
  150         736.0813 Duty to inform and account.—The trustee shall keep
  151  the qualified beneficiaries of the trust reasonably informed of
  152  the trust and its administration.
  153         (1) The trustee’s duty to inform and account includes, but
  154  is not limited to, the following:
  155         (d) A trustee of an irrevocable trust shall provide a trust
  156  accounting, as set forth in s. 736.08135, from the date of the
  157  last accounting or, if none, from the date on which the trustee
  158  became accountable, to each qualified beneficiary at least
  159  annually and on termination of the trust or on change of the
  160  trustee. Notwithstanding s. 736.0105(2)(s) or the duties under
  161  this paragraph, if a family trust company, licensed family trust
  162  company, or foreign licensed family trust company, as defined in
  163  s. 662.111, is a trustee of an irrevocable trust, the terms of
  164  the trust may permit for accounting to the qualified
  165  beneficiaries only at the termination of the trust; upon the
  166  removal, resignation, or other event resulting in a trustee
  167  ceasing to serve as a trustee; or upon demand of a qualified
  168  beneficiary or the representative of a qualified beneficiary.
  169  This paragraph may not be construed to prohibit a trustee that
  170  is a family trust company, licensed family trust company, or
  171  foreign licensed family trust company from voluntarily
  172  accounting to the qualified beneficiaries annually or at other
  173  times selected by such trustee.
  174  
  175  Paragraphs (a) and (b) do not apply to an irrevocable trust
  176  created before the effective date of this code, or to a
  177  revocable trust that becomes irrevocable before the effective
  178  date of this code. Paragraph (a) does not apply to a trustee who
  179  accepts a trusteeship before the effective date of this code.
  180         Section 9. Present subsection (3) of section 736.08135,
  181  Florida Statutes, is redesignated as subsection (4) and amended,
  182  and a new subsection (3) is added to that section, to read:
  183         736.08135 Trust accountings.—
  184         (3) Notwithstanding subsections (1) and (2), if a family
  185  trust company, licensed family trust company, or foreign
  186  licensed family trust company, as defined in s. 662.111, is a
  187  trustee of the trust, such trustee may elect, for any accounting
  188  period, to provide the qualified beneficiaries with all of the
  189  following information:
  190         (a) A notice stating that the trustee has made an election
  191  to provide the information described in this subsection.
  192         (b)The information required by paragraph (2)(a) and, if
  193  applicable, the information required by paragraph (2)(f).
  194         (c) A financial statement for the trust which summarizes
  195  the information provided pursuant to paragraphs (2)(b)-(e). The
  196  financial statement must contain sufficient information to put
  197  the beneficiary on notice of the trust’s comprehensive assets
  198  and liabilities as well as of the transactions occurring during
  199  the accounting period. A financial statement that reports a
  200  summary of the comprehensive assets and liabilities at the
  201  beginning and end of the accounting period and the aggregate
  202  amounts of all cash and property transactions, gains, losses,
  203  receipts, expenses, disbursements, distributions, accruals, or
  204  allowances occurring within the accounting period for each
  205  category of assets and liabilities meets the requirements of
  206  this paragraph.
  207  
  208  For the purposes of this chapter, a financial statement that a
  209  trustee provides to a beneficiary of a trust under this
  210  subsection is deemed to be a trust accounting. Any trustee that
  211  makes the election provided in this subsection shall, upon
  212  request of any beneficiary made within the limitations period
  213  under s. 736.1008, make available the detailed information
  214  necessary for preparation of the financial statement to the
  215  beneficiary within 30 days after the date of such request,
  216  including providing copies of the requested information. A
  217  request by a beneficiary for the detailed information necessary
  218  for the preparation of the financial statement tolls the running
  219  of any applicable limitations period until the detailed
  220  information is made available to the beneficiary.
  221         (4)(3) Subsections (1) and (2) govern the form and content
  222  of all trust accountings rendered for any accounting periods
  223  beginning on or after January 1, 2003, and all trust accountings
  224  rendered on or after July 1, 2018. The election provided in
  225  subsection (3) for trusts for which a family trust company,
  226  licensed family trust company, or foreign licensed family trust
  227  company, as defined in s. 662.111, is a trustee is available for
  228  any accounting periods beginning on or after July 1, 2022. This
  229  subsection does not affect the beginning period from which a
  230  trustee is required to render a trust accounting.
  231         Section 10. Subsection (2) of section 736.08145, Florida
  232  Statutes, is amended to read:
  233         736.08145 Grantor trust reimbursement.—
  234         (2) This section applies to all trusts that are governed by
  235  the laws of this state or that have a principal place of
  236  administration within this state, whether created on, before, or
  237  after July 1, 2020, unless:
  238         (a) The trustee provides written notification that the
  239  trustee intends to irrevocably elect out of the application of
  240  this section, at least 60 days before the effective date of such
  241  election, to the person treated as the owner of all or a portion
  242  of the trust under s. 671 of the Internal Revenue Code or any
  243  similar federal, state, or other tax law and to all persons who
  244  have the ability to remove and replace the trustee.
  245         (b) Applying this section would prevent a contribution to
  246  the trust from qualifying for, or would reduce, a federal tax
  247  benefit, including a federal tax exclusion or deduction, which
  248  was originally claimed or could have been claimed for the
  249  contribution, including:
  250         1. An exclusion under s. 2503(b) or s. 2503(c) of the
  251  Internal Revenue Code;
  252         2. A marital deduction under s. 2056, s. 2056A, or s. 2523
  253  of the Internal Revenue Code;
  254         3. A charitable deduction under s. 170(a), s. 642(c), s.
  255  2055(a), or s. 2522(a) of the Internal Revenue Code; or
  256         4. Direct skip treatment under s. 2642(c) of the Internal
  257  Revenue Code.
  258         Section 11. This act shall take effect July 1, 2022.