Florida Senate - 2024                      CS for CS for SB 1316
       
       
        
       By the Committees on Rules; and Judiciary; and Senator Berman
       
       
       
       
       
       595-03345-24                                          20241316c2
    1                        A bill to be entitled                      
    2         An act relating to the Florida Uniform Fiduciary
    3         Income and Principal Act; amending s. 738.101, F.S.;
    4         revising a short title; amending s. 738.102, F.S.;
    5         revising and providing definitions governing ch. 738,
    6         F.S.; amending s. 738.103, F.S.; specifying the scope
    7         of ch. 738, F.S.; amending s. 738.104, F.S.;
    8         specifying circumstances under which ch. 738, F.S.,
    9         applies to a trust; repealing s. 738.1041, F.S.,
   10         relating to total return unitrusts; repealing s.
   11         738.105, F.S., relating to judicial control of
   12         discretionary powers; amending s. 738.201, F.S.;
   13         specifying the duties of a fiduciary; providing that a
   14         fiduciary’s allocation, determination, or exercise of
   15         discretion is presumed to be fair and reasonable to
   16         all beneficiaries; requiring a fiduciary to take
   17         specified actions; authorizing a fiduciary to exercise
   18         discretionary power of administration under specified
   19         circumstances; requiring the fiduciary to consider
   20         specified factors before exercising such discretionary
   21         power; providing applicability; amending s. 738.202,
   22         F.S.; defining the term “fiduciary decision”;
   23         prohibiting a court from ordering a fiduciary to
   24         change his or her decision unless the decision was an
   25         abuse of discretionary power; prohibiting a court from
   26         determining that a fiduciary abused his or her
   27         discretion under specified conditions; authorizing a
   28         court to order a specified remedy; authorizing a court
   29         to determine whether a proposed fiduciary decision
   30         will result in an abuse of discretion; providing that
   31         a beneficiary who opposes a proposed decision has the
   32         burden to establish that such decision is an abuse of
   33         discretion; requiring that any attorney fees incurred
   34         in defending an action related to the abuse of a
   35         fiduciary’s discretion be paid from trust assets;
   36         creating s. 738.203, F.S.; authorizing a fiduciary to
   37         adjust between income and principal if such adjustment
   38         assists in administering the trust or estate
   39         impartially; providing construction; providing that a
   40         fiduciary is not liable to another for an adjustment,
   41         or failure to adjust, between income and principal
   42         made in good faith; requiring a fiduciary to consider
   43         certain relevant factors when considering such
   44         adjustment; prohibiting a fiduciary from exercising or
   45         considering such adjustment if certain conditions
   46         exist; revising applicability; authorizing a fiduciary
   47         to release or delegate to a cofiduciary specified
   48         powers to adjust under specified conditions; providing
   49         requirements and powers for any such releases and
   50         delegations; providing applicability; requiring that
   51         the description of an exercise of the power to adjust
   52         between income and principal contain specified
   53         information; amending s. 738.301, F.S.; defining
   54         terms; amending s. 738.302, F.S.; specifying
   55         applicability of specified provisions; authorizing the
   56         conversion of an income trust to a unitrust;
   57         restricting provisions to trusts that are
   58         beneficiaries of an estate; providing construction;
   59         providing that a fiduciary acting in good faith is not
   60         liable to a person affected by a certain action or
   61         inaction; amending s. 738.303, F.S.; specifying the
   62         authority of a fiduciary with respect to the
   63         administration of certain trusts; providing the
   64         circumstances under which a fiduciary may perform such
   65         actions; authorizing a beneficiary or a fiduciary to
   66         request the court to allow the beneficiary or
   67         fiduciary to take a specified action; requiring a
   68         fiduciary to inform specified persons of a decision to
   69         take action; authorizing a beneficiary to request a
   70         court to direct the fiduciary to take the requested
   71         action under specified circumstances; requiring
   72         fiduciaries to consider specified factors before
   73         taking a certain action; authorizing a fiduciary to
   74         release or delegate the power to take certain actions;
   75         creating s. 738.304, F.S.; requiring a certain notice
   76         to be sent to specified parties; providing
   77         applicability; authorizing a person to consent to a
   78         specified action in a record; providing that such
   79         person does not need to be sent notice of such action;
   80         providing requirements for such notices; creating s.
   81         738.305, F.S.; requiring a fiduciary of a unitrust to
   82         follow a certain policy; providing rules for a
   83         unitrust policy; providing additional actions a
   84         unitrust policy may contain; creating s. 738.306,
   85         F.S.; requiring a unitrust rate to be within a
   86         specified range; authorizing a unitrust policy to
   87         provide for specified limits within such range;
   88         requiring a fiduciary who is a non-independent person
   89         to use a specified unitrust rate; creating s. 738.307,
   90         F.S.; requiring a unitrust policy to provide a
   91         specified method for determining fair market value of
   92         an asset in determining a unitrust amount; authorizing
   93         specified unitrust policies to provide methods for
   94         determining a certain net fair market value;
   95         prohibiting certain property from being included in
   96         the determination of the value of a trust; creating s.
   97         738.308, F.S.; requiring a unitrust policy to provide
   98         a specified period; specifying that such period must
   99         be a calendar year; authorizing a unitrust policy to
  100         provide certain standards for periods; creating s.
  101         738.309, F.S.; providing applicability; authorizing a
  102         trustee of an express unitrust to determine the
  103         unitrust amount by reference to the net fair market
  104         value of the unitrust’s assets in a specified
  105         timeframe; providing that distribution of a unitrust
  106         amount is considered a distribution of all the net
  107         income of an express unitrust and is considered an
  108         income interest; specifying that the unitrust amount
  109         is considered a reasonable apportionment of the total
  110         return of the express unitrust; providing that an
  111         express unitrust that allows a distribution in excess
  112         of a specified unitrust rate is considered a
  113         distribution of all of the income of the unitrust;
  114         authorizing an express unitrust to provide a mechanism
  115         for changing the unitrust rate and for conversion from
  116         a unitrust to an income trust or from an income trust
  117         to a unitrust; specifying that unless an express
  118         unitrust prohibits the power to change the rate or
  119         convert the trust, the trustee has such power;
  120         authorizing the governing instrument of an express
  121         unitrust to grant the trustee discretion to adopt a
  122         certain practice; specifying that unless an express
  123         unitrust provides otherwise, the distribution of an
  124         amount is considered a distribution from specified
  125         sources in a specified order of priority; authorizing
  126         a governing instrument of an express unitrust to allow
  127         exclusion of specified assets; providing that the use
  128         of such assets may be considered equivalent to income
  129         or to the unitrust amount; creating s. 738.310, F.S.;
  130         requiring a trustee, after the conversion of an income
  131         trust to a unitrust, to consider the unitrust amount
  132         paid from certain sources in a specified order of
  133         priority; amending s. 738.401, F.S.; defining and
  134         revising terms; specifying that an attribute or action
  135         of an entity includes an attribute or action from any
  136         other entity in which the initial entity has an
  137         ownership interest or holds another interest;
  138         requiring a fiduciary to allocate certain money and
  139         tangible personal property to income; requiring a
  140         fiduciary to allocate specified property and money to
  141         principal; providing that certain money received in an
  142         entity distribution is a capital distribution in
  143         specified circumstances; specifying that in cases of
  144         capital distribution, the amount received in an entity
  145         distribution must be reduced to the extent that
  146         cumulative distributions from the entity to the
  147         fiduciary are within certain ranges; authorizing a
  148         fiduciary to consider additional information before
  149         deciding to make or change a decision to make a
  150         payment to a beneficiary; providing that if a
  151         fiduciary receives specified additional information
  152         after a distribution to a beneficiary, the fiduciary
  153         is not required to change or recover the payment;
  154         authorizing a fiduciary in such a situation to
  155         exercise other specified powers; revising definitions;
  156         requiring a fiduciary to allocate certain money and
  157         property to principal; providing the mechanism for
  158         such allocation; defining the term “public entity”;
  159         conforming provisions to changes made by the act;
  160         amending s. 738.402, F.S.; conforming provisions to
  161         changes made by the act; amending s. 738.403, F.S.;
  162         providing applicability; authorizing a fiduciary to
  163         make certain determinations separately and differently
  164         from the decisions concerning distributions of income
  165         or principal; conforming provisions to changes made by
  166         the act; making technical changes; creating s.
  167         738.404, F.S.; specifying receipts that a fiduciary
  168         must allocate to principal; creating s. 738.405, F.S.;
  169         providing for the allocation of income from rental
  170         property; creating s. 738.406, F.S.; specifying
  171         applicability; requiring a fiduciary to allocate to
  172         income certain amounts received as interest; requiring
  173         a fiduciary to allocate to income increments in value
  174         of certain bonds or other obligations; creating s.
  175         738.407, F.S.; specifying applicability; requiring a
  176         fiduciary to allocate proceeds from insurance policies
  177         or contracts to principal in a specified manner;
  178         creating s. 738.408, F.S.; specifying circumstances
  179         under which a fiduciary may allocate an insubstantial
  180         allocation to principal, subject to certain conditions
  181         and limitations; creating s. 738.409, F.S.; defining
  182         terms; specifying the manner in which a fiduciary may
  183         determine incomes of separate funds; providing duties
  184         of a fiduciary of a marital trust and other trusts;
  185         requiring a fiduciary of a nonseparate fund to
  186         calculate internal income in a specified manner;
  187         providing construction; transferring, renumbering, and
  188         amending s. 738.603, F.S.; revising the definition of
  189         the term “liquidating asset”; providing applicability;
  190         requiring a fiduciary to allocate to income and
  191         principal the receipts produced by liquidating assets
  192         in a certain manner; transferring, renumbering, and
  193         amending s. 738.604, F.S.; requiring a fiduciary to
  194         allocate the receipts from interests in minerals,
  195         water, or other natural resources to income,
  196         principal, or between income and principal under
  197         specified conditions; revising applicability;
  198         providing that an allocation between income and
  199         principal from a receipt from a natural resource is
  200         presumed equitable under a specified condition;
  201         providing construction; transferring, renumbering, and
  202         amending s. 738.605, F.S.; requiring a fiduciary to
  203         allocate receipts from timber to income, principal, or
  204         between income and principal under specified
  205         conditions; revising applicability; transferring,
  206         renumbering, and amending s. 738.606, F.S.;
  207         authorizing a settlor’s spouse to require the trustee
  208         of a trust that receives certain property to make such
  209         property produce income under specified conditions;
  210         authorizing the trustee to take specified actions if
  211         directed by such spouse; providing that the trustee
  212         decides whether to take one or a combination of such
  213         actions; revising applicability; providing
  214         construction; transferring, renumbering, and amending
  215         s. 738.607, F.S.; revising the definition of the term
  216         “derivative”; requiring a fiduciary to allocate
  217         specified percentages of certain receipts and
  218         disbursements to income and allocate the balance to
  219         principal; providing construction; requiring certain
  220         fiduciaries to allocate a specified percentage to
  221         income and allocate the balance to principal of
  222         certain amounts; transferring, renumbering, and
  223         amending s. 738.608, F.S.; requiring a fiduciary to
  224         allocate to income a receipt from or related to asset
  225         backed securities under a specified condition;
  226         requiring a fiduciary to allocate to income a
  227         specified percentage of receipts from the transaction
  228         and the disbursement of a payment received as a result
  229         of an interest in an asset-backed security; conforming
  230         provisions to changes made by the act; creating s.
  231         738.416, F.S.; requiring a fiduciary to make specified
  232         allocations from receipts from other financial
  233         instruments or arrangements; providing construction;
  234         amending s. 738.501, F.S.; specifying the manner by
  235         which a fiduciary must make disbursements from income;
  236         amending s. 738.502, F.S.; specifying the manner by
  237         which a fiduciary must make disbursements from
  238         principal; amending s. 738.503, F.S.; defining the
  239         term “depreciation”; specifying the manner by which a
  240         fiduciary may make transfers from income to principal
  241         to account for depreciation; amending s. 738.504,
  242         F.S.; specifying the manner by which a fiduciary may
  243         make transfers from principal to income for
  244         reimbursements; transferring, renumbering, and
  245         amending s. 738.704, F.S.; providing that a fiduciary
  246         that makes or expects to make a certain principal
  247         disbursement may transfer an appropriate amount from
  248         income to principal in one or more accounting periods;
  249         providing applicability; making technical changes;
  250         deleting a provision relating to payments necessary to
  251         avoid defaulting on a mortgage or security interest on
  252         certain property; transferring, renumbering, and
  253         amending s. 738.705, F.S.; revising the sources from
  254         which a fiduciary must pay a tax required by a share
  255         of an entity’s taxable income; requiring a fiduciary
  256         to adjust income or principal receipts if the taxes
  257         paid are reduced due to a deduction for a payment made
  258         to a beneficiary; providing construction; making
  259         technical changes; transferring, renumbering, and
  260         amending s. 738.706, F.S.; revising the circumstances
  261         under which a fiduciary may make adjustments between
  262         income and principal to offset shifts in the economic
  263         interests or tax benefits of specified beneficiaries;
  264         requiring a fiduciary to charge a beneficiary to
  265         reimburse the principal if the beneficiary benefits
  266         from an applicable tax deduction; requiring the share
  267         of reimbursement for each fiduciary or beneficiary to
  268         be the same as its share of the decrease in income
  269         tax; authorizing such fiduciary to charge a
  270         beneficiary to offset the estate tax by obtaining
  271         payment from the beneficiary, withholding an amount
  272         from future distributions, or adopting another method
  273         or combination of methods; creating s. 738.508, F.S.;
  274         defining terms; specifying the manner by which
  275         property expenses are apportioned between a tenant and
  276         remainderman; providing applicability and
  277         construction; amending s. 738.601, F.S.; providing
  278         applicability; specifying the manner by which a
  279         fiduciary determines and distributes net income;
  280         providing circumstances under which a fiduciary may
  281         not reduce certain principal or income receipts;
  282         amending s. 738.602, F.S.; providing that certain
  283         beneficiaries of non-unitrusts are entitled to receive
  284         a specified share of net income; providing that
  285         certain requirements apply in determining a
  286         beneficiary’s share of net income; providing
  287         construction; amending s. 738.701, F.S.; providing
  288         that an income beneficiary is entitled to net income
  289         when an asset is subject to a certain trust or
  290         successive interest; providing that an asset becomes
  291         subject to a specified trust on certain dates;
  292         amending s. 738.702, F.S.; specifying the manner by
  293         which a fiduciary allocates certain receipts and makes
  294         disbursements when a decedent dies or income interest
  295         begins; providing construction; amending s. 738.703,
  296         F.S.; defining the term “undistributed income”;
  297         specifying the manner by which a fiduciary makes
  298         allocations of undistributed income when income
  299         interest ends; amending s. 738.801, F.S.; providing
  300         for uniform application and construction of the act;
  301         amending s. 738.802, F.S.; providing construction in
  302         relation to federal law; amending s. 738.803, F.S.;
  303         making a technical change; amending s. 738.804, F.S.;
  304         revising the application of ch. 738, F.S., to conform
  305         to changes made by the act; providing an effective
  306         date.
  307          
  308  Be It Enacted by the Legislature of the State of Florida:
  309  
  310         Section 1. Section 738.101, Florida Statutes, is amended to
  311  read:
  312         738.101 Short title.—This chapter may be cited as the
  313  “Florida Uniform Fiduciary Income and Principal and Income Act.”
  314         Section 2. Section 738.102, Florida Statutes, is amended to
  315  read:
  316         738.102 Definitions.—As used in this chapter, the term:
  317         (1) “Accounting period” means a calendar year unless
  318  another 12-month period is selected by a fiduciary selects
  319  another period of 12 calendar months or approximately 12
  320  calendar months. The term includes a part portion of a calendar
  321  year or another period of 12 calendar months or approximately 12
  322  calendar months which other 12-month period that begins when an
  323  income interest begins or ends when an income interest ends.
  324         (2) “Asset-backed security,” as provided in s. 738.415,
  325  means a security that is serviced primarily by the cash flows of
  326  a discrete pool of fixed or revolving receivables or other
  327  financial assets that by their terms convert to cash within a
  328  finite time. The term includes rights or other assets that
  329  ensure the servicing or timely distribution of proceeds to the
  330  holder of the asset-backed security. The term does not include
  331  an asset to which s. 738.401, s. 738.409, or s. 738.414 applies.
  332         (3) “Beneficiary” includes:
  333         (a)For a trust:
  334         1.A current beneficiary, including a current income
  335  beneficiary and a beneficiary that may receive only principal;
  336         2.A remainder beneficiary; and
  337         3.Any other successor beneficiary;
  338         (b)For an estate, an heir, and a devisee; and
  339         (c)For a life estate or term interest, a person who holds
  340  a life estate, a term interest, or a remainder or other interest
  341  following a life estate or term interest means, in the case of a
  342  decedent’s estate, an heir or devisee and, in the case of a
  343  trust, an income beneficiary or a remainder beneficiary.
  344         (4)(3) “Carrying value” means the fair market value at the
  345  time the assets are received by the fiduciary. For an estate and
  346  for a trust the estates of decedents and trusts described in s.
  347  733.707(3), after the settlor’s grantor’s death, the assets are
  348  considered received as of the date of the settlor’s death. If
  349  there is a change in fiduciaries, a majority of the continuing
  350  fiduciaries may elect to adjust the carrying values to reflect
  351  the fair market value of the assets at the beginning of their
  352  administration. If such election is made, it must be reflected
  353  on the first accounting filed after the election. For assets
  354  acquired during the administration of the estate or trust, the
  355  carrying value is equal to the acquisition costs of the asset.
  356  Carrying value of assets should not be arbitrarily “written up”
  357  or “written down.” In some circumstances, including, but not
  358  limited to, those described in ss. 738.410 and 738.602, carrying
  359  value may be adjusted with proper disclosure to reflect changes
  360  in carrying value applied in a consistent manner.
  361         (5)“Court” means a circuit court of this state.
  362         (6)“Current income beneficiary” means a beneficiary to
  363  which a fiduciary may or must distribute net income, regardless
  364  of whether the fiduciary also distributes principal to the
  365  beneficiary.
  366         (7) “Distribution” means a payment or transfer by a
  367  fiduciary to a beneficiary in the beneficiary’s capacity as a
  368  beneficiary, without consideration other than the beneficiary’s
  369  right to receive the payment or transfer under the terms of the
  370  trust as defined in subsection (24), or in a will, life estate,
  371  or term interest. “Distribute,” “distributed,” and “distributee”
  372  have corresponding meanings.
  373         (8) “Estate” means a decedent’s estate, including the
  374  property of the decedent as the estate is originally constituted
  375  and the property of the estate as it exists at any time during
  376  administration.
  377         (9)(4) “Fiduciary” includes means a trustee, a trust
  378  director as defined in s. 736.0103, or a personal
  379  representative, and a person acting under a delegation from a
  380  fiduciary or a trustee. The term also includes a person that
  381  holds property for a successor beneficiary whose interest may be
  382  affected by an allocation of receipts and expenditures between
  383  income and principal. If there are two or more cofiduciaries,
  384  the term includes all cofiduciaries acting under the terms of
  385  the trust and applicable law an executor, administrator,
  386  successor personal representative, special administrator, or a
  387  person performing substantially the same function.
  388         (10)(5) “Income” means money or other property that a
  389  fiduciary receives as current return from a principal asset. The
  390  term includes a part portion of receipts from a sale, exchange,
  391  or liquidation of a principal asset, to the extent provided in
  392  ss. 738.401-738.416 ss. 738.401-738.403 and s. 738.503.
  393         (6) “Income beneficiary” means a person to whom net income
  394  of a trust is or may be payable.
  395         (11)(7) “Income interest” means the right of a current an
  396  income beneficiary to receive all or part of net income, whether
  397  the terms of the trust require the net income to be distributed
  398  or authorize the net income to be distributed in the fiduciary’s
  399  trustee’s discretion. The term includes the right of a current
  400  beneficiary to use property held by a fiduciary.
  401         (12) “Independent person” means a person who is not:
  402         (a) For a trust:
  403         1. A qualified beneficiary as defined in s. 736.0103;
  404         2. A settlor of the trust;
  405         3. An individual whose legal obligation to support a
  406  beneficiary may be satisfied by a distribution from the trust;
  407  or
  408         4. Any trustee whom an interested distributee has the power
  409  to remove and replace with a related or subordinate party.
  410         (b) For an estate, a beneficiary;
  411         (c) A spouse, a parent, a brother, a sister, or an issue of
  412  an individual described in paragraph (a) or paragraph (b);
  413         (d) A corporation, a partnership, a limited liability
  414  company, or another entity in which persons described in
  415  paragraphs (a), (b), and (c), in the aggregate, have voting
  416  control; or
  417         (e) An employee of a person described in paragraph (a),
  418  paragraph (b), paragraph (c), or paragraph (d).
  419         (13) “Internal Revenue Code” means the Internal Revenue
  420  Code of 1986, as amended.
  421         (14)(8) “Mandatory income interest” means the right of a
  422  current an income beneficiary to receive net income that the
  423  terms of the trust require the fiduciary to distribute.
  424         (15)(9) “Net income” means the total allocations receipts
  425  allocated to income during an accounting period to income under
  426  the terms of a trust and this chapter minus the disbursements
  427  made from income during the period, other than distributions,
  428  allocated to income under the terms of the trust and this
  429  chapter. To the extent that the trust is a unitrust under ss.
  430  738.301-738.310, the term means the unitrust amount determined
  431  under ss. 738.301-738.310. The term includes the amount of an
  432  adjustment from principal to income under s. 738.203. The term
  433  does not include the amount of an adjustment plus or minus
  434  transfers under this chapter to or from income to principal
  435  under s. 738.203 during the period.
  436         (16)(10) “Person” means an individual, a business or a
  437  nonprofit entity, corporation, business trust, an estate, a
  438  trust, partnership, limited liability company, association,
  439  joint venture, a public corporation, or any other legal or
  440  commercial entity or a government or governmental subdivision,
  441  agency, or instrumentality, or other legal entity.
  442         (17) “Personal representative” means an executor, an
  443  administrator, a successor personal representative, a special
  444  administrator, or a person that performs substantially the same
  445  function with respect to an estate under the law governing the
  446  person’s status.
  447         (18)(11) “Principal” means property held in trust for
  448  distribution to, production of income for, or use by a current
  449  or successor a remainder beneficiary when the trust terminates.
  450         (19) “Record” means information inscribed on a tangible
  451  medium or stored in an electronic or other medium and is
  452  retrievable in perceivable form.
  453         (20) “Settlor” means a person, including a testator, who
  454  creates or contributes property to a trust. If more than one
  455  person creates or contributes property to a trust, the term
  456  includes each person, to the extent of the trust property
  457  attributable to that person’s contribution, except to the extent
  458  that another person has the power to revoke or withdraw that
  459  portion.
  460         (21) “Special tax benefit” means:
  461         (a) Exclusion of a transfer to a trust from gifts described
  462  in s. 2503(b) of the Internal Revenue Code because of the
  463  qualification of an income interest in the trust as a present
  464  interest in property;
  465         (b) Status as a qualified subchapter S trust described in
  466  s. 1361(d)(3) of the Internal Revenue Code at a time the trust
  467  holds stock of an S corporation described in s. 1361(a)(1) of
  468  the Internal Revenue Code;
  469         (c) An estate or gift tax marital deduction for a transfer
  470  to a trust under s. 2056 or s. 2523 of the Internal Revenue Code
  471  which depends or depended in whole or in part on the right of
  472  the settlor’s spouse to receive the net income of the trust;
  473         (d) Exemption in whole or in part of a trust from the
  474  federal generation-skipping transfer tax imposed by s. 2601 of
  475  the Internal Revenue Code because the trust was irrevocable on
  476  September 25, 1985, if there is any possibility that:
  477         1. A taxable distribution as defined in s. 2612(b) of the
  478  Internal Revenue Code could be made from the trust; or
  479         2. A taxable termination as defined in s. 2612(a) of the
  480  Internal Revenue Code could occur with respect to the trust; or
  481         (e) An inclusion ratio as defined in s. 2642(a) of the
  482  Internal Revenue Code of the trust which is less than one, if
  483  there is any possibility that:
  484         1. A taxable distribution as defined in s. 2612(b) of the
  485  Internal Revenue Code could be made from the trust; or
  486         2. A taxable termination as defined in s. 2612(a) of the
  487  Internal Revenue Code could occur with respect to the trust.
  488         (22) “Successive interest” means the interest of a
  489  successor beneficiary.
  490         (23)(12) “Successor Remainder beneficiary” means a person
  491  entitled to receive income or principal or to use property when
  492  an income interest or other current interest ends.
  493         (24)(13) “Terms of a trust” means:
  494         (a) Except as otherwise provided in paragraph (b), the
  495  manifestation of the settlor’s intent regarding a trust’s
  496  provisions as:
  497         1. Expressed in the will or trust instrument; or
  498         2. Established by other evidence that would be admissible
  499  in a judicial proceeding.
  500         (b) The trust’s provisions as established, determined, or
  501  amended by:
  502         1. A trustee or trust director in accordance with the
  503  applicable law;
  504         2. A court order; or
  505         3. A nonjudicial settlement agreement under s. 736.0111.
  506         (c) For an estate, a will; or
  507         (d) For a life estate or term interest, the corresponding
  508  manifestation of the rights of the beneficiaries to the extent
  509  provided in s. 738.508 the manifestation of the intent of a
  510  grantor or decedent with respect to the trust, expressed in a
  511  manner that admits of its proof in a judicial proceeding,
  512  whether by written or spoken words or by conduct.
  513         (25) “Trust” includes an express trust, whether private or
  514  charitable, with additions to the trust, wherever and however
  515  created; and a trust created or determined by a judgment or
  516  decree under which the trust is to be administered in the manner
  517  of an express trust. The term does not include a constructive
  518  trust; a resulting trust; a conservatorship; a custodial
  519  arrangement under the Florida Uniform Transfers to Minors Act; a
  520  business trust providing for certificates to be issued to
  521  beneficiaries; a common trust fund; a land trust under s.
  522  689.071; a trust created by the form of the account or by the
  523  deposit agreement at a financial institution; a voting trust; a
  524  security arrangement; a liquidation trust; a trust for the
  525  primary purpose of paying debts, dividends, interest, salaries,
  526  wages, profits, pensions, retirement benefits, or employee
  527  benefits of any kind; or an arrangement under which a person is
  528  a nominee, an escrowee, or an agent for another.
  529         (26)(14) “Trustee” means a person, other than a personal
  530  representative, that owns or holds property for the benefit of a
  531  beneficiary. The term includes an original, additional, or
  532  successor trustee, regardless of whether they are or not
  533  appointed or confirmed by a court.
  534         (27) “Will” means any testamentary instrument recognized
  535  under applicable law which makes a legally effective disposition
  536  of an individual’s property, effective at the individual’s
  537  death. The term includes a codicil or other amendment to a
  538  testamentary instrument.
  539         Section 3. Section 738.103, Florida Statutes, is amended to
  540  read:
  541         (Substantial rewording of section. See
  542         s. 738.103, F.S., for present text.)
  543         738.103 Scope.—Except as otherwise provided in the terms of
  544  a trust or this chapter, this chapter applies to all of the
  545  following:
  546         (1) A trust or an estate.
  547         (2) A life estate or other term interest in which the
  548  interest of one or more persons will be succeeded by the
  549  interest of one or more other persons to the extent provided in
  550  s. 738.508.
  551         Section 4. Section 738.104, Florida Statutes, is amended to
  552  read:
  553         (Substantial rewording of section. See
  554         s. 738.104, F.S., for present text.)
  555         738.104 Governing law.—Except as otherwise provided in the
  556  terms of a trust or this chapter, this chapter applies when this
  557  state is the principal place of administration of a trust or
  558  estate or the situs of property that is not held in a trust or
  559  estate and is subject to a life estate or other term interest
  560  described in s. 738.103(2). By accepting the trusteeship of a
  561  trust having its principal place of administration in this state
  562  or by moving the principal place of administration of a trust to
  563  this state, the trustee submits to the application of this
  564  chapter to any matter within the scope of this chapter involving
  565  the trust.
  566         Section 5. Section 738.1041, Florida Statutes, is repealed.
  567         Section 6. Section 738.105, Florida Statutes, is repealed.
  568         Section 7. Section 738.201, Florida Statutes, is amended to
  569  read:
  570         (Substantial rewording of section. See
  571         s. 738.201, F.S., for present text.)
  572         738.201 Fiduciary duties; general principles.—
  573         (1) In making an allocation or determination or exercising
  574  discretion under this chapter, a fiduciary shall do all of the
  575  following:
  576         (a) Act in good faith, based on what is a fair and
  577  reasonable fee to all beneficiaries.
  578         (b) Administer a trust or estate impartially, except to the
  579  extent that the terms of the trust manifest an intent that the
  580  fiduciary favors one or more beneficiaries.
  581         (c) Administer the trust or estate in accordance with the
  582  terms of the trust, even if there is a different provision in
  583  this chapter.
  584         (d) Administer the trust or estate in accordance with this
  585  chapter, except to the extent that the terms of the trust
  586  provide otherwise or authorize the fiduciary to determine
  587  otherwise.
  588         (2) A fiduciary’s allocation, determination, or exercise of
  589  discretion under this chapter is presumed to be fair and
  590  reasonable to all beneficiaries. A fiduciary may exercise a
  591  discretionary power of administration given to the fiduciary by
  592  the terms of the trust, and an exercise of the power that
  593  produces a result different from a result required or permitted
  594  by this chapter does not create an inference that the fiduciary
  595  abused the fiduciary’s discretion.
  596         (3) A fiduciary shall:
  597         (a) Add a receipt to principal, to the extent that the
  598  terms of the trust and this chapter do not allocate the receipt
  599  between income and principal;
  600         (b) Charge a disbursement to principal, to the extent that
  601  the terms of the trust and this chapter do not allocate the
  602  disbursement between income and principal; and
  603         (c) Within 65 days after the fiscal year ends, add any
  604  undistributed income to principal, unless otherwise provided by
  605  the terms of the trust.
  606         (4) A fiduciary may exercise the power to adjust under s.
  607  738.203(1), convert an income trust to a unitrust under ss.
  608  738.301-738.310, change the percentage or method used to
  609  calculate a unitrust amount under ss. 738.301-738.310, or
  610  convert a unitrust to an income trust under ss. 738.301-738.310
  611  if the fiduciary determines the exercise of the power will
  612  assist the fiduciary to administer the trust or estate
  613  impartially.
  614         (5) The fiduciary must consider the following factors in
  615  making the determination in subsection (4), including:
  616         (a) The terms of the trust.
  617         (b) The nature, distribution standards, and expected
  618  duration of the trust.
  619         (c) The effect of the allocation rules, including specific
  620  adjustments between income and principal, under ss. 738.301
  621  738.416.
  622         (d) The desirability of liquidity and regularity of income.
  623         (e) The desirability of the preservation and appreciation
  624  of principal.
  625         (f) The extent to which an asset is used or may be used by
  626  a beneficiary.
  627         (g) The increase or decrease in the value of principal
  628  assets, reasonably determined by the fiduciary.
  629         (h) Whether and to what extent the terms of the trust give
  630  the fiduciary power to accumulate income or invade principal or
  631  prohibit the fiduciary from accumulating income or invading
  632  principal.
  633         (i) The extent to which the fiduciary has accumulated
  634  income or invaded principal in preceding accounting periods.
  635         (j) The effect of current and reasonably expected economic
  636  conditions.
  637         (k) The reasonably expected tax consequences of the
  638  exercise of the power.
  639         (l) The identities and circumstances of the beneficiaries.
  640         (6) Except as provided in ss. 738.301-738.310, this chapter
  641  pertains to the administration of a trust and is applicable to
  642  any trust that is administered in this state or under its law.
  643  This chapter also applies to any estate that is administered in
  644  this state unless the provision is limited in application to a
  645  trustee, rather than a fiduciary.
  646         Section 8. Section 738.202, Florida Statutes, is amended to
  647  read:
  648         (Substantial rewording of section. See
  649         s. 738.202, F.S., for present text.)
  650         738.202 Judicial review of exercise of discretionary power;
  651  request for instruction.—
  652         (1) As used in this section, the term “fiduciary decision”
  653  means any of the following:
  654         (a) A fiduciary’s allocation between income and principal
  655  or other determination regarding income and principal required
  656  or authorized by the terms of the trust or this chapter.
  657         (b) The fiduciary’s exercise or nonexercise of a
  658  discretionary power regarding income and principal granted by
  659  the terms of the trust or this chapter, including the power to
  660  adjust under s. 738.203, convert an income trust to a unitrust
  661  under ss. 738.301-738.310, change the percentage or method used
  662  to calculate a unitrust amount under ss. 738.301-738.310,
  663  convert a unitrust to an income trust under ss. 738.301-738.310,
  664  or the method used to make property productive of income under
  665  s. 738.413.
  666         (c) The fiduciary’s implementation of a decision described
  667  in paragraph (a) or paragraph (b).
  668         (2) The court may not order a fiduciary to change a
  669  fiduciary decision unless the court determines that the
  670  fiduciary decision was an abuse of the fiduciary’s discretion. A
  671  court may not determine that a fiduciary abused its discretion
  672  merely because the court would have exercised the discretion in
  673  a different manner or would not have exercised the discretion.
  674         (3) If the court determines that a fiduciary decision was
  675  an abuse of the fiduciary’s discretion, the court may order a
  676  remedy authorized by law, including those prescribed under ss.
  677  736.1001 and 736.1002. Following such a determination by the
  678  court, the remedy is to place the beneficiaries in the positions
  679  the beneficiaries would have occupied if the fiduciary had not
  680  abused its discretion, as follows:
  681         (a) The court may order the fiduciary to exercise or
  682  refrain from exercising the power to adjust under s. 738.203;
  683         (b) The court may order the fiduciary to exercise or
  684  refrain from exercising the power to convert an income trust to
  685  a unitrust under ss. 738.301-738.310, change the percentage or
  686  method used to calculate a unitrust amount under ss. 738.301
  687  738.310, or convert a unitrust to an income trust under ss.
  688  738.301-738.310;
  689         (c) The court may compel the fiduciary to take any of the
  690  actions listed under s. 738.413;
  691         (d) To the extent that the abuse of discretion has resulted
  692  in no distribution to a beneficiary or a distribution that is
  693  too small, the court shall require the fiduciary to distribute
  694  from the trust to the beneficiary an amount the court determines
  695  will restore the beneficiary, in whole or in part, to his or her
  696  appropriate position;
  697         (e) To the extent that the abuse of discretion has resulted
  698  in a distribution to a beneficiary that is too large, the court
  699  shall restore the beneficiaries, the trust, or both, in whole or
  700  in part, to their appropriate positions by requiring the
  701  fiduciary to withhold an amount from one or more future
  702  distributions to the beneficiary who received the distribution
  703  that was too large or requiring that beneficiary to return some
  704  or all of the distribution to the trust; or
  705         (f) To the extent that the court is unable, after applying
  706  paragraphs (a)-(e), to restore the beneficiaries or the trust,
  707  or both, to the positions they would have occupied if the
  708  fiduciary had not abused its discretion, the court may require
  709  the fiduciary to pay an appropriate amount from its own funds to
  710  one or more of the beneficiaries or the trust or both.
  711         (4) On petition by the fiduciary for instruction, the court
  712  may determine whether a proposed fiduciary decision will result
  713  in an abuse of the fiduciary’s discretion. If the petition
  714  describes the proposed decision, contains sufficient information
  715  to inform the beneficiary of the reasons for making the proposed
  716  decision and the facts on which the fiduciary relies, and
  717  explains how the beneficiary will be affected by the proposed
  718  decision, a beneficiary who opposes the proposed decision has
  719  the burden to establish that it will result in an abuse of the
  720  fiduciary’s discretion.
  721         (5) If an action is instituted alleging an abuse of
  722  discretion in the exercise or nonexercise of the fiduciary’s
  723  discretion under this chapter and the court determines no abuse
  724  of discretion has occurred, the fiduciary’s costs and attorney
  725  fees incurred in defending the action shall be paid from the
  726  trust assets.
  727         Section 9. Section 738.203, Florida Statutes, is created to
  728  read:
  729         738.203 Fiduciary’s power to adjust.—
  730         (1) Except as otherwise provided in the terms of a trust or
  731  this section, a fiduciary, in a record without court approval,
  732  may adjust between income and principal if the fiduciary
  733  determines that the exercise of the power to adjust will assist
  734  the fiduciary in administering the trust or estate impartially.
  735         (2) This section does not create a duty to exercise or
  736  consider the power to adjust under subsection (1) or to inform a
  737  beneficiary about the applicability of this section.
  738         (3) A fiduciary that in good faith exercises or fails to
  739  exercise the power to adjust under subsection (1) is not liable
  740  to a person affected by the exercise or failure to exercise.
  741         (4) In deciding whether and to what extent to exercise the
  742  power to adjust under subsection (1), a fiduciary shall consider
  743  all factors the fiduciary considers relevant, including relevant
  744  factors in s. 738.201(5), and the application of ss. 738.401(9),
  745  738.408 and 738.413.
  746         (5) A fiduciary may not exercise the power under subsection
  747  (1) to make an adjustment or under s. 738.408 to make a
  748  determination that an allocation is insubstantial if:
  749         (a) The adjustment or determination would reduce the amount
  750  payable to a current income beneficiary from a trust that
  751  qualifies for a special tax benefit, except to the extent that
  752  the adjustment is made to provide for a reasonable apportionment
  753  of the total return of the trust between the current income
  754  beneficiary and successor beneficiaries;
  755         (b) The adjustment or determination would change the amount
  756  payable to a beneficiary, as a fixed annuity or a fixed fraction
  757  of the value of the trust assets, under the terms of the trust;
  758         (c) The adjustment or determination would reduce an amount
  759  that is permanently set aside for a charitable purpose under the
  760  terms of the trust unless both income and principal are set
  761  aside for the charitable purpose;
  762         (d) Possessing or exercising the power would cause a person
  763  to be treated as the owner of all or part of the trust for
  764  federal income tax purposes and the person would not be treated
  765  as the owner if the fiduciary did not possess the power to
  766  adjust;
  767         (e) Possessing or exercising the power would cause all or
  768  part of the value of the trust assets to be included in the
  769  gross estate of an individual for federal real estate tax
  770  purposes and the assets would not be included in the gross
  771  estate of the individual if the fiduciary did not possess the
  772  power to adjust;
  773         (f) Possessing or exercising the power would cause an
  774  individual to be treated as making a gift for federal gift tax
  775  purposes;
  776         (g) The fiduciary is not an independent person;
  777         (h) The trust is irrevocable and provides for income to be
  778  paid to the settlor, and possessing or exercising the power
  779  would cause the adjusted principal or income to be considered an
  780  available resource or available income under a public-benefit
  781  program; or
  782         (i) The trust is a unitrust under ss. 738.301-738.310.
  783         (6) If paragraph (5)(d), paragraph (5)(e), paragraph
  784  (5)(f), or paragraph (5)(g) applies to a fiduciary:
  785         (a) A cofiduciary to which paragraphs (5)(d)-(g) do not
  786  apply may exercise the power to adjust, unless the exercise of
  787  the power by the remaining cofiduciary or cofiduciaries is not
  788  permitted by the terms of the trust or law other than this
  789  chapter; or
  790         (b) If there is no cofiduciary to which paragraphs (5)(d)
  791  (g) do not apply, the fiduciary may appoint a cofiduciary to
  792  which paragraphs (5)(d)-(g) do not apply which may be a special
  793  fiduciary with limited powers, and the appointed cofiduciary may
  794  exercise the power to adjust under subsection (1), unless the
  795  appointment of a cofiduciary or the exercise of the power by a
  796  cofiduciary is not permitted by the terms of the trust or law
  797  other than this chapter.
  798         (7) A fiduciary may release or delegate to a cofiduciary
  799  the power to adjust under subsection (1) if the fiduciary
  800  determines that the fiduciary’s possession or exercise of the
  801  power will or may:
  802         (a) Cause a result described in paragraph (5)(a), paragraph
  803  (5)(b), paragraph (5)(c), paragraph (5)(d), paragraph (5)(e),
  804  paragraph (5)(f), or paragraph (5)(h); or
  805         (b) Deprive the trust of a tax benefit or impose a tax
  806  burden not described in paragraph (5)(a), paragraph (5)(b),
  807  paragraph (5)(c), paragraph (5)(d), paragraph (5)(e), or
  808  paragraph (5)(f).
  809         (8) A fiduciary’s release or delegation to a cofiduciary
  810  under subsection (7) of the power to adjust under subsection
  811  (1):
  812         (a) Must be in a record;
  813         (b) Applies to the entire power, unless the release or
  814  delegation provides a limitation, which may be a limitation to
  815  the power to adjust:
  816         1. From income to principal;
  817         2. From principal to income;
  818         3. For specified property; or
  819         4. In specified circumstances;
  820         (c) For a delegation, may be modified by a redelegation
  821  under this subsection by the cofiduciary to which the delegation
  822  is made; and
  823         (d) Subject to paragraph (c), is permanent, unless the
  824  release or delegation provides a specified period, including a
  825  period measured by the life of an individual or the lives of
  826  more than one individual.
  827         (9) Terms of a trust that deny or limit the power to adjust
  828  between income and principal do not affect the application of
  829  this section, unless the terms of the trust expressly deny or
  830  limit the power to adjust under subsection (1).
  831         (10) The exercise of the power to adjust under subsection
  832  (1) in any accounting period may apply to the current period,
  833  the immediately preceding period, and one or more subsequent
  834  periods.
  835         (11) A description of the exercise of the power to adjust
  836  under subsection (1) must be:
  837         (a) Included in a report, if any, sent to beneficiaries
  838  under s. 736.0813; or
  839         (b) Communicated at least annually to the qualified
  840  beneficiaries as defined in s. 736.0103 other than the Attorney
  841  General.
  842         (12) With respect to a trust in existence on January 1,
  843  2003:
  844         (a) A fiduciary may not have the power to adjust under this
  845  section until the statement required in subsection (13) is
  846  provided and either no objection is made or any objection which
  847  is made has been terminated.
  848         1. An objection is made if, within 60 days after the date
  849  of the statement required in subsection (13), a super majority
  850  of the eligible beneficiaries deliver to the fiduciary a written
  851  objection to the application of this section to such trust. An
  852  objection shall be deemed to be delivered to the fiduciary on
  853  the date the objection is mailed to the mailing address listed
  854  in the notice provided in subsection (13).
  855         2. An objection is terminated upon the earlier of the
  856  receipt of consent from a super majority of eligible
  857  beneficiaries of the class that made the objection, or the
  858  resolution of the objection under paragraph (c).
  859         (b) An objection or consent under this section may be
  860  executed by a legal representative or natural guardian of a
  861  beneficiary without the filing of any proceeding or approval of
  862  any court.
  863         (c) If an objection is delivered to the fiduciary, then the
  864  fiduciary may petition the circuit court for an order quashing
  865  the objection and vesting in such fiduciary the power to adjust
  866  under this section. The burden will be on the objecting
  867  beneficiaries to prove that the power to adjust would be
  868  inequitable, illegal, or otherwise in contravention of the
  869  settlor’s intent. The court may award costs and attorney fees
  870  relating to the fiduciary’s petition in the same manner as in
  871  chancery actions. When costs and attorney fees are to be paid
  872  out of the trust, the court may, in its discretion, direct from
  873  which part of the trust they shall be paid.
  874         (d) If no timely objection is made or if the fiduciary is
  875  vested with the power to adjust by court order, the fiduciary
  876  may thereafter exercise the power to adjust without providing
  877  notice of its intent to do so unless, in vesting the fiduciary
  878  with the power to adjust, the court determines that unusual
  879  circumstances require otherwise.
  880         (e)1. If a fiduciary makes a good faith effort to comply
  881  with the notice provisions of subsection (13), but fails to
  882  deliver notice to one or more beneficiaries entitled to such
  883  notice, neither the validity of the notice required under this
  884  subsection nor the fiduciary’s power to adjust under this
  885  section shall be affected until the fiduciary has actual notice
  886  that one or more beneficiaries entitled to notice were not
  887  notified. Until the fiduciary has actual notice of the notice
  888  deficiency, the fiduciary shall have all of the powers and
  889  protections granted a fiduciary with the power to adjust under
  890  this chapter.
  891         2. When the fiduciary has actual notice that one or more
  892  beneficiaries entitled to notice under subsection (13) were not
  893  notified, the fiduciary’s power to adjust under this section
  894  shall cease until all beneficiaries who are entitled to such
  895  notice, including those who were previously provided with such
  896  notice, are notified and given the opportunity to object as
  897  provided for under this subsection.
  898         (f) The objection of a super majority of eligible
  899  beneficiaries under this subsection shall be valid for a period
  900  of 1 year after the date of the notice set forth in subsection
  901  (13). Upon expiration of the objection, the fiduciary may
  902  thereafter give a new notice under subsection (13).
  903         (g) This section is not intended to create or imply a duty
  904  of the fiduciary of a trust existing on January 1, 2003, to seek
  905  a power to adjust under this subsection or to give the notice
  906  described in subsection (13) if the fiduciary does not desire to
  907  have a power to adjust under this section, and no inference of
  908  impropriety shall be made as the result of a fiduciary not
  909  seeking a power to adjust under this subsection.
  910         (13)(a) A fiduciary of a trust in existence on January 1,
  911  2003, that is not prohibited under subsection (5) from
  912  exercising the power to adjust shall, any time before initially
  913  exercising the power, provide to all eligible beneficiaries a
  914  statement containing the following:
  915         1. The name, telephone number, street address, and mailing
  916  address of the fiduciary and of any person who may be contacted
  917  for further information;
  918         2. A statement that unless a super majority of the eligible
  919  beneficiaries objects to the application of this section to the
  920  trust within 60 days after the date the statement pursuant to
  921  this subsection was served, this section shall apply to the
  922  trust; and
  923         3. A statement that, if this section applies to the trust,
  924  the fiduciary will have the power to adjust between income and
  925  principal and that such a power may have an effect on the
  926  distributions to such beneficiary from the trust.
  927         (b) The statement may contain information regarding a
  928  fiduciary’s obligation with respect to the power to adjust
  929  between income and principal under this section.
  930         (c) The statement shall be served informally, in the manner
  931  provided in the Florida Rules of Civil Procedure relating to
  932  service of pleadings subsequent to the initial pleading. The
  933  statement may be served on a legal representative or natural
  934  guardian of a beneficiary without the filing of any proceeding
  935  or approval of any court.
  936         (14) For purposes of subsections (12) and (13), the term:
  937         (a) “Eligible beneficiaries” means:
  938         1. If at the time the determination is made there are one
  939  or more beneficiaries described in s. 736.0103(19)(c), the
  940  beneficiaries described in s. 736.0103(19)(a) and (c); or
  941         2. If there is no beneficiary described in s.
  942  736.0103(19)(c), the beneficiaries described in s.
  943  736.0103(19)(a) and (b).
  944         (b) “Super majority of the eligible beneficiaries” means:
  945         1. If at the time the determination is made there are one
  946  or more beneficiaries described in s. 736.0103(19)(c), at least
  947  two-thirds in interest of the beneficiaries described in s.
  948  736.0103(19)(a) or two-thirds in interest of the beneficiaries
  949  described in s. 736.0103(19)(c), if the interests of the
  950  beneficiaries are reasonably ascertainable; otherwise, it means
  951  two-thirds in number of either such class; or
  952         2. If there is no beneficiary described in s.
  953  736.0103(19)(c), at least two-thirds in interest of the
  954  beneficiaries described in s. 736.0103(19)(a) or two-thirds in
  955  interest of the beneficiaries described in s. 736.0103(19)(b),
  956  if the interests of the beneficiaries are reasonably
  957  ascertainable, otherwise, two-thirds in number of either such
  958  class.
  959         (15) A trust exists on January 1, 2003, if it is not
  960  revocable on January 1, 2003. A trust is revocable if revocable
  961  by the settlor alone or in conjunction with any other person. A
  962  trust is not revocable for purposes of this section if revocable
  963  by the settlor only with the consent of all persons having a
  964  beneficial interest in the property.
  965         Section 10. Section 738.301, Florida Statutes, is amended
  966  to read:
  967         (Substantial rewording of section. See
  968         s. 738.301, F.S., for present text).
  969         738.301 Definitions.—For purposes of this section and ss.
  970  738.302-738.310:
  971         (1) “Applicable value” means the amount of the net fair
  972  market value of a trust taken into account under s. 738.307.
  973         (2) “Express unitrust” means a trust for which, under the
  974  terms of the trust without regard to this section and ss.
  975  738.302-738.310, net income must be calculated as a unitrust
  976  amount.
  977         (3) “Income trust” means a trust, created by an inter vivos
  978  or testamentary instrument, that directs or permits the trustee
  979  to distribute the net income of the trust to one or more
  980  persons, in fixed proportions or in amounts or proportions
  981  determined by the trustee and regardless of whether the trust
  982  directs or permits the trustee to distribute the principal of
  983  the trust to one or more such persons.
  984         (4) “Net fair market value of a trust” means the fair
  985  market value of the assets of the trust, less the reasonably
  986  known noncontingent liabilities of the trust.
  987         (5) “Unitrust” means a trust for which net income is a
  988  unitrust amount. The term includes an express unitrust.
  989         (6) “Unitrust amount” means an amount computed by
  990  multiplying a determined value of a trust by a determined
  991  percentage. For a unitrust administered under a unitrust policy,
  992  the term means the applicable value multiplied by the unitrust
  993  rate.
  994         (7) “Unitrust policy” means a policy described in ss.
  995  738.301-738.310 and adopted under s. 738.303.
  996         (8) “Unitrust rate” means the rate used to compute the
  997  unitrust amount for a unitrust administered under a unitrust
  998  policy.
  999         Section 11. Section 738.302, Florida Statutes, is amended
 1000  to read:
 1001         (Substantial rewording of section. See
 1002         s. 738.302, F.S., for present text.)
 1003         738.302 Applications; duties and remedies.—
 1004         (1) Except as otherwise provided in subsection (2), ss.
 1005  738.301-738.310 apply to all of the following:
 1006         (a) An income trust, unless the terms of the trust
 1007  expressly prohibit the use of ss. 738.301-738.310 by a specific
 1008  reference to this paragraph or corresponding provision of prior
 1009  law, or an explicit expression of intent that net income not be
 1010  calculated as a unitrust amount.
 1011         (b) An express unitrust, except to the extent that the
 1012  terms of the trust explicitly:
 1013         1. Prohibit the use of ss. 738.301-738.310 by a specific
 1014  reference to this paragraph or corresponding provision of prior
 1015  law;
 1016         2. Prohibit conversion to an income trust; or
 1017         3. Limit changes to the method of calculating the unitrust
 1018  amount.
 1019         (c) A unitrust that had been converted from an income
 1020  trust.
 1021         (2) The provisions of ss. 738.301-738.310 do not apply to a
 1022  trust described in s. 170(f)(2)(B), s. 642(c)(5), s. 664(d), s.
 1023  2702(a)(3)(A)(ii) or (iii), or s. 2702(b) of the Internal
 1024  Revenue Code.
 1025         (3) An income trust to which ss. 738.301-738.310 apply
 1026  under paragraph (1)(a) may be converted to a unitrust under ss.
 1027  738.301-738.310 regardless of the terms of the trust concerning
 1028  distributions. Conversion to a unitrust under ss. 738.301
 1029  738.310 does not affect other terms of the trust concerning
 1030  distributions of income or principal.
 1031         (4) Sections 738.301-738.310 apply to an estate only to the
 1032  extent that a trust is a beneficiary of the estate. To the
 1033  extent of the trust’s interest in the estate, the estate may be
 1034  administered as a unitrust, the administration of the estate as
 1035  a unitrust may be discontinued, or the percentage or method used
 1036  to calculate the unitrust amount may be changed, in the same
 1037  manner as for a trust under those sections.
 1038         (5) The provisions of ss. 738.301-738.310 do not create a
 1039  duty to take or consider action under ss. 738.301-738.310 or to
 1040  inform a beneficiary about the applicability of ss. 738.301
 1041  738.310.
 1042         (6) A fiduciary that in good faith takes or fails to take
 1043  an action under ss. 738.301-738.310 is not liable to a person
 1044  affected by the action or inaction.
 1045         Section 12. Section 738.303, Florida Statutes, is amended
 1046  to read:
 1047         (Substantial rewording of section. See
 1048         s. 738.303, F.S., for present text.)
 1049         738.303 Authority of fiduciary.—
 1050         (1) By complying with subsections (2) and (6), and without
 1051  court approval, a fiduciary may do any of the following:
 1052         (a) Convert an income trust to a unitrust if the fiduciary
 1053  adopts in a record a unitrust policy for the trust which
 1054  provides:
 1055         1. That in administering the trust, the net income of the
 1056  trust will be a unitrust amount rather than net income
 1057  determined without regard to ss. 738.301-738.310; and
 1058         2. The percentage and method used to calculate the unitrust
 1059  amount.
 1060         (b) Change the percentage or method used to calculate a
 1061  unitrust amount for a unitrust if the fiduciary adopts in a
 1062  record a unitrust policy or an amendment or replacement of a
 1063  unitrust policy providing charges in the percentage or method
 1064  used to calculate the unitrust amount.
 1065         (c) Convert a unitrust to an income trust if the fiduciary
 1066  adopts in a record a determination that, in administering the
 1067  trust, the net income of the trust will be net income determined
 1068  without regard to ss. 738.301-738.310 rather than a unitrust
 1069  amount.
 1070         (2) A fiduciary may take an action under subsection (1) if
 1071  all of the following apply:
 1072         (a) The fiduciary determines that the action will assist
 1073  the fiduciary to administer a trust impartially.
 1074         (b) The fiduciary sends a notice in a record to the
 1075  qualified beneficiaries determined under ss. 736.0103 and
 1076  736.0110 in the manner required by s. 738.304, describing and
 1077  proposing to take the action.
 1078         (c) The fiduciary sends a copy of the notice under
 1079  paragraph (b) to each settlor of the trust which is:
 1080         1. If an individual, living; or
 1081         2. If not an individual, in existence.
 1082         (d) At least one member of each class of the qualified
 1083  beneficiaries determined under ss. 736.0103 and 736.0110, other
 1084  than the Attorney General, receiving the notice under paragraph
 1085  (b) is:
 1086         1. If an individual, legally competent;
 1087         2. If not an individual, in existence; or
 1088         3. Represented in the manner provided in s. 738.304(2).
 1089         (e) The fiduciary does not receive, by the date specified
 1090  in the notice under s. 738.304(4)(e), an objection in a record
 1091  to the action proposed under paragraph (b) from a person to
 1092  which the notice under paragraph (b) is sent.
 1093         (3) If a fiduciary receives, not later than the date stated
 1094  in the notice under s. 738.304(4)(e), an objection in a record
 1095  described in s. 738.304(4)(d) to a proposed action, the
 1096  fiduciary or a beneficiary may request the court to have the
 1097  action taken as proposed, taken with modifications, or
 1098  prevented. A person described in s. 738.304(1) may oppose the
 1099  proposed action in the proceeding under this subsection
 1100  regardless of whether the person:
 1101         (a) Consented under s. 738.304(3); or
 1102         (b) Objected under s. 738.304(4)(d).
 1103         (4) If, after sending a notice under paragraph (2)(b), a
 1104  fiduciary decides not to take the action proposed in the notice,
 1105  the fiduciary must notify in a record each person described in
 1106  s. 738.304(1) of the decision not to take the action and the
 1107  reasons for the decision.
 1108         (5) If a beneficiary requests in a record that a fiduciary
 1109  take an action described in subsection (1) and the fiduciary
 1110  declines to act or does not act within 60 days after receiving
 1111  the request, the beneficiary may request the court to direct the
 1112  fiduciary to take the action requested.
 1113         (6) In deciding whether and how to take an action
 1114  authorized in subsection (1), or whether and how to respond to a
 1115  request by a beneficiary under subsection (5), a fiduciary must
 1116  consider all factors relevant to the trust and beneficiaries,
 1117  including the relevant factors listed in s. 738.201(5).
 1118         (7) A fiduciary may release or delegate the power to
 1119  convert an income trust to a unitrust under paragraph (1)(a),
 1120  change the percentage or method used to calculate a unitrust
 1121  amount under paragraph (1)(b), or convert a unitrust to an
 1122  income trust under paragraph (1)(c), for a reason described in
 1123  s. 738.203(7) and in the manner described in s. 738.203(8).
 1124         Section 13. Section 738.304, Florida Statutes, is created
 1125  to read:
 1126         738.304 Notice.—
 1127         (1) A notice required by s. 738.303(2)(b) must be sent in a
 1128  manner authorized under s. 736.0109 to all of the following:
 1129         (a) The qualified beneficiaries determined under s.
 1130  736.0103, other than the Attorney General.
 1131         (b) Each person that is granted a power over the trust by
 1132  the terms of the trust, to the extent that the power is
 1133  exercisable when the person is not then serving as a trustee:
 1134         1. Including all of the following:
 1135         a. Power over the investment, management, or distribution
 1136  of trust property or other matters of trust administration.
 1137         b. Power to appoint or remove a trustee or person described
 1138  in this paragraph.
 1139         2. Excluding all of the following:
 1140         a. Power of appointment.
 1141         b. Power of a beneficiary over the trust, to the extent
 1142  that the exercise or nonexercise of the power affects the
 1143  beneficial interest of the beneficiary or another beneficiary
 1144  represented by the beneficiary under ss. 736.0301-736.0306 with
 1145  respect to the exercise or nonexercise of the power.
 1146         c. Power over the trust if the terms of the trust provide
 1147  that the power is held in a nonfiduciary capacity and the power
 1148  must be held in a nonfiduciary capacity to achieve a tax
 1149  objective under the Internal Revenue Code.
 1150         (c) Each person that is granted a power by the terms of the
 1151  trust to appoint or remove a trustee or person described in
 1152  paragraph (b) to the extent that the power is exercisable when
 1153  the person that exercises the power is not serving as a trustee
 1154  or person described in paragraph (b).
 1155         (2) The representation provisions of ss. 736.0301-736.0306
 1156  apply to notice under this section.
 1157         (3) A person may consent in a record at any time to action
 1158  proposed under s. 738.303(2)(b). A notice required by s.
 1159  738.303(2)(b) need not be sent to a person that consents under
 1160  this subsection.
 1161         (4) A notice required under s. 738.303(2)(b) must include
 1162  all of the following:
 1163         (a) The action proposed under s. 738.303(2)(b).
 1164         (b) For a conversion of an income trust to a unitrust, a
 1165  copy of the unitrust policy adopted under s. 738.303(1)(a).
 1166         (c) For a change in the percentage or method used to
 1167  calculate the unitrust amount, a copy of the unitrust policy or
 1168  amendment or replacement of the unitrust policy adopted under s.
 1169  738.303(1)(b).
 1170         (d) A statement that the person to which the notice is sent
 1171  may object to the proposed action by stating in a record the
 1172  basis for the objection and sending or delivering the record to
 1173  the fiduciary.
 1174         (e) The date by which an objection under paragraph (d) must
 1175  be received by the fiduciary, which must be at least 30 days
 1176  after the date the notice is sent.
 1177         (f) The date on which the action is proposed to be taken
 1178  and the date on which the action is proposed to take effect.
 1179         (g) The name and contact information of the fiduciary.
 1180         (h) The name and contact information of a person that may
 1181  be contacted for additional information.
 1182         Section 14. Section 738.305, Florida Statutes, is created
 1183  to read:
 1184         738.305 Unitrust policy.—
 1185         (1) In administering a unitrust under ss. 738.301-738.310,
 1186  a fiduciary shall follow a unitrust policy adopted under s.
 1187  738.303(1)(a) or (b) or amended or replaced under s.
 1188  738.303(1)(b).
 1189         (2) A unitrust policy must provide all of the following:
 1190         (a) The unitrust rate or method for determining the
 1191  unitrust rate under s. 738.306.
 1192         (b) The method for determining the applicable value under
 1193  s. 738.307.
 1194         (c) The rules described in ss. 738.306-738.310 which apply
 1195  in the administration of the unitrust, whether the rules are:
 1196         1. Mandatory as provided in ss. 738.307(1) and (3),
 1197  738.308(1), and 738.310; or
 1198         2. Optional as provided in ss. 738.306, 738.307(2), and
 1199  738.308(2), to the extent that the fiduciary elects to adopt
 1200  those rules.
 1201         (3) A unitrust policy may do any of the following:
 1202         (a) Provide methods and standards for:
 1203         1. Determining the timing of the distributions;
 1204         2. Making distributions in cash or in kind or partly in
 1205  cash and partly in kind; or
 1206         3. Correcting an underpayment or overpayment to a
 1207  beneficiary based on the unitrust amount if there is an error in
 1208  calculating the unitrust amount.
 1209         (b) Specify sources and the order of sources, including
 1210  categories of income for federal income tax purposes, from which
 1211  distributions of a unitrust amount are paid.
 1212         (c) Provide other standards and rules that the fiduciary
 1213  determines serve the interests of the beneficiaries.
 1214         Section 15. Section 738.306, Florida Statutes, is created
 1215  to read:
 1216         738.306 Unitrust rate.—
 1217         (1) A unitrust rate must be at least 3 percent and not more
 1218  than 5 percent. Within those limits, the unitrust rate may be:
 1219         (a) A fixed unitrust rate; or
 1220         (b)1. A unitrust rate that is determined for each period
 1221  using:
 1222         a. A market index or other published data; or
 1223         b. A mathematical blend of market indices or other
 1224  published data over a stated number of preceding periods.
 1225         2. If the rate calculated under this paragraph would be
 1226  less than 3, the rate is 3; and if the rate calculated would be
 1227  more than 5, the rate is 5.
 1228         (2) Within the limits of subsection (1), a unitrust policy
 1229  may provide for any of the following:
 1230         (a) A limit on how much the unitrust rate determined under
 1231  paragraph (1)(b) may increase over the unitrust rate for the
 1232  preceding period or a mathematical blend of unitrust rates over
 1233  a stated number of preceding periods.
 1234         (b) A limit on how much the unitrust rate determined under
 1235  paragraph (1)(b) may decrease below the unitrust rate for the
 1236  preceding period or a mathematical blend of unitrust rates over
 1237  a stated number of preceding periods.
 1238         (c) A mathematical blend of any of the unitrust rates
 1239  determined under paragraph (1)(b) and paragraphs (a) and (b).
 1240         (3) If the fiduciary is not an independent person, the
 1241  percentage used to calculate the unitrust amount is the rate
 1242  determined under s. 7520(a)(2) of the Internal Revenue Code in
 1243  effect for the month the conversion under this section becomes
 1244  effective and for each January thereafter; however, if the rate
 1245  determined under s. 7520(a)(2) of the Internal Revenue Code
 1246  exceeds 5 percent, the unitrust rate is 5 percent, and if the
 1247  rate determined under s. 7520(a)(2) of the Internal Revenue Code
 1248  is less than 3 percent, the unitrust rate is 3 percent.
 1249         Section 16. Section 738.307, Florida Statutes, is created
 1250  to read:
 1251         738.307 Applicable value.—
 1252         (1) A unitrust policy must provide the method for
 1253  determining the fair market value of an asset for the purpose of
 1254  determining the unitrust amount, including all of the following:
 1255         (a) The frequency of valuing the asset, which need not
 1256  require a valuation in every period.
 1257         (b) The date for valuing the asset in each period in which
 1258  the asset is valued.
 1259         (2) Except as otherwise provided in s. 738.309, a unitrust
 1260  policy may provide methods for determining the amount of the net
 1261  fair market value of the trust to take into account in
 1262  determining the applicable value, including any of the
 1263  following:
 1264         (a) Obtaining an appraisal of an asset for which fair
 1265  market value is not readily available.
 1266         (b) Excluding specific assets or groups or types of assets
 1267  in addition to those described in subsection (3).
 1268         (c) Making other exceptions or modifications of the
 1269  treatment of specific assets or groups or types of assets.
 1270         (d) Including identification and treatment of cash or
 1271  property held for distribution.
 1272         (e) Using an average of fair market values over a stated
 1273  number of preceding periods, not to exceed 3 calendar years.
 1274         (f) Determining the reasonable known liabilities of the
 1275  trust, including treatment of liabilities to conform with the
 1276  treatment of assets under paragraphs (a)-(e).
 1277         (3) The following property may not be included in
 1278  determining the value of the trust:
 1279         (a) Any residential property or any tangible personal
 1280  property that, as of the first business day of the current
 1281  valuation year, one or more current beneficiaries of the trust
 1282  have or have had the right to occupy or have or have had the
 1283  right to possess or control, other than in his or her capacity
 1284  as trustee of the trust. Instead, the right of occupancy or the
 1285  right to possession and control is the unitrust amount with
 1286  respect to such property; however, the unitrust amount must be
 1287  adjusted to take into account partial distributions from or
 1288  receipt into the trust of such property during the valuation
 1289  year;
 1290         (b) Any asset specifically given to a beneficiary and the
 1291  return on investment on such property, which return on
 1292  investment must be distributable to the beneficiary; and
 1293         (c) Any asset while held in an estate.
 1294         Section 17. Section 738.308, Florida Statutes, is created
 1295  to read:
 1296         738.308 Period.—
 1297         (1) A unitrust policy must provide the period used under
 1298  ss. 738.306 and 738.307. The period must be the calendar year.
 1299         (2) A unitrust policy may provide standards for:
 1300         (a) Using fewer preceding periods under s. 738.306(1)(b)1.
 1301  or (2)(a) or (b) if:
 1302         1. The trust was not in existence in a preceding period; or
 1303         2. Market indices or other published data are not available
 1304  for a preceding period;
 1305         (b) Using fewer preceding periods under 738.307(2)(e) if:
 1306         1. The trust was not in existence in a preceding period; or
 1307         2. Fair market values are not available for a preceding
 1308  period; and
 1309         (c) Prorating a unitrust amount on a daily basis for a part
 1310  of a period in which the trust or the administration of the
 1311  trust as a unitrust or the interest of any beneficiary commences
 1312  or terminates.
 1313         Section 18. Section 738.309, Florida Statutes, is created
 1314  to read:
 1315         738.309 Express unitrust.—
 1316         (1) This section applies to a trust that, by its governing
 1317  instrument, requires or allows income or net income to be
 1318  calculated as a unitrust amount.
 1319         (2) The trustee of an express unitrust may determine the
 1320  unitrust amount by reference to the net fair market value of the
 1321  unitrust’s assets in 1 or more years.
 1322         (3) Distribution of a unitrust amount is considered a
 1323  distribution of all of the net income of an express unitrust and
 1324  is considered to be an income interest.
 1325         (4) The unitrust amount is considered to be a reasonable
 1326  apportionment of the total return of an express unitrust.
 1327         (5) An express unitrust that provides or allows a
 1328  distribution based on a unitrust rate in excess of 5 percent per
 1329  year of the net fair market value of the unitrust assets is
 1330  considered a distribution of all of the income of the unitrust
 1331  and a distribution of principal of the unitrust to the extent
 1332  that the distribution exceeds 5 percent per year.
 1333         (6) An express unitrust may provide a mechanism for
 1334  changing the unitrust rate, similar to the mechanism provided
 1335  under s. 738.306, based upon the factors noted in that section,
 1336  and may provide for a conversion from a unitrust to an income
 1337  trust or a reconversion of an income trust to a unitrust under
 1338  s. 738.303.
 1339         (7) If an express unitrust does not specifically or by
 1340  reference to s. 738.306 prohibit a power to change the unitrust
 1341  rate or to convert to an income trust under s. 738.303, the
 1342  trustee must have such power.
 1343         (8) The governing instrument of an express unitrust may
 1344  grant the trustee discretion to adopt a consistent practice of
 1345  treating capital gains as part of the unitrust amount to the
 1346  extent that the unitrust amount exceeds the income determined as
 1347  if the trust were not an express unitrust, or the governing
 1348  instrument may specify the ordering of classes of income.
 1349         (9) Unless the terms of the express unitrust specifically
 1350  provide otherwise as provided in subsection (8), the
 1351  distribution of a unitrust amount is considered a distribution
 1352  made from the following sources, which are listed in order of
 1353  priority:
 1354         (a) Net accounting income determined under this chapter as
 1355  if the trust were not a unitrust;
 1356         (b) Ordinary income not allocable to net accounting income;
 1357         (c) Net realized short-term capital gains;
 1358         (d) Net realized long-term capital gains; and
 1359         (e) The principal of the trust.
 1360         (10) The governing instrument of an express unitrust may
 1361  provide that the trustee may exclude assets used by the
 1362  unitrust’s beneficiary, including, but not limited to, a
 1363  residence property or tangible personal property, from the net
 1364  fair market value of the unitrust’s assets for the purposes of
 1365  computing the unitrust amount. The use of these assets may be
 1366  considered equivalent to income or to the unitrust amount.
 1367         Section 19. Section 738.310, Florida Statutes, is created
 1368  to read:
 1369         738.310 Other rules.—Following the conversion of an income
 1370  trust to a unitrust, the trustee shall consider the unitrust
 1371  amount as paid from the following sources, which are listed in
 1372  order of priority:
 1373         (1) Net accounting income determined under this chapter as
 1374  if the trust were not a unitrust;
 1375         (2) Ordinary income not allocable to net accounting income;
 1376         (3) Net realized short-term capital gains;
 1377         (4) Net realized long-term capital gains; and
 1378         (5) The principal of the trust.
 1379         Section 20. Section 738.401, Florida Statutes, is amended
 1380  to read:
 1381         738.401 Character of receipts from entity.—
 1382         (1) For purposes of this section, the term:
 1383         (a) “Capital distribution” means an entity distribution of
 1384  money which is a:
 1385         1. Return of capital; or
 1386         2. Distribution in total or partial liquidation of the
 1387  entity.
 1388         (b) “Entity”:
 1389         1. Means a corporation, partnership, limited liability
 1390  company, regulated investment company, real estate investment
 1391  trust, common trust fund, or any other organization or
 1392  arrangement in which a fiduciary owns or holds has an interest,
 1393  regardless of whether the entity is a taxpayer for federal
 1394  income tax purposes; and
 1395         2. Does not include:
 1396         a. A trust or estate to which s. 738.402 applies;
 1397         b. A business or other activity to which s. 738.403 applies
 1398  which is not conducted by an entity described in subparagraph
 1399  1.;
 1400         c. An asset-backed security; or
 1401         d. An instrument or arrangement to which s. 738.416 applies
 1402  other than a trust or estate to which s. 738.402 applies, a
 1403  business or activity to which s. 738.403 applies, or an asset
 1404  backed security to which s. 738.608 applies.
 1405         (c) “Entity distribution” means a payment or transfer by an
 1406  entity to a person in the person’s capacity as an owner or
 1407  holder of an interest in the entity.
 1408         (d) “Lookback period” means the accounting period and the
 1409  preceding two accounting periods or, if less, the number of
 1410  accounting periods, or portion of accounting periods, that the
 1411  interest in the entity has been held by the fiduciary.
 1412         (2) In this section, an attribute or action of an entity
 1413  includes an attribute or action of any other entity in which the
 1414  initial entity owns or holds an interest, including an interest
 1415  owned or held indirectly through another entity.
 1416         (3) Except as otherwise provided in paragraphs (4)(b), (c),
 1417  and (d) this section, a fiduciary shall allocate to income:
 1418         (a) Money received in an entity distribution; and
 1419         (b) Tangible personal property of nominal value received
 1420  from the money received from an entity.
 1421         (4)(3)Except as otherwise provided in this section, A
 1422  fiduciary shall allocate the following receipts from an entity
 1423  to principal:
 1424         (a) Property received in an entity distribution which is
 1425  not:
 1426         1.other than Money; or
 1427         2. Tangible personal property of nominal value.
 1428         (b) Money received in an entity one distribution or a
 1429  series of related distributions in an exchange for part or all
 1430  of the fiduciary’s a trust’s or estate’s interest in the entity
 1431  to the extent that the entity distribution reduces the
 1432  fiduciary’s interest in the entity relative to the interest of
 1433  other persons that own or hold interests in the entity.
 1434         (c) Money received in an entity distribution that is a
 1435  capital distribution, to the extent not allocated to income
 1436  total or partial liquidation of the entity.
 1437         (d) Money received in an entity distribution from an entity
 1438  that is a regulated investment company or a real estate
 1439  investment trust if the money received represents short-term or
 1440  long-term capital gain realized within the entity.
 1441         (e) Money received from an entity listed on a public stock
 1442  exchange during any year of the trust or estate which exceeds 10
 1443  percent of the fair market value of the trust’s or estate’s
 1444  interest in the entity on the first day of that year. The amount
 1445  to be allocated to principal must be reduced to the extent that
 1446  the cumulative distributions from the entity to the trust or
 1447  estate allocated to income do not exceed a cumulative annual
 1448  return of 3 percent of the fair market value of the interest in
 1449  the entity at the beginning of each year or portion of a year
 1450  for the number of years or portion of years in the period that
 1451  the interest in the entity has been held by the trust or estate.
 1452  If a trustee has exercised a power to adjust under s. 738.104
 1453  during any period the interest in the entity has been held by
 1454  the trust, the trustee, in determining the total income
 1455  distributions from that entity, must take into account the
 1456  extent to which the exercise of that power resulted in income to
 1457  the trust from that entity for that period. If the income of the
 1458  trust for any period has been computed under s. 738.1041, the
 1459  trustee, in determining the total income distributions from that
 1460  entity for that period, must take into account the portion of
 1461  the unitrust amount paid as a result of the ownership of the
 1462  trust’s interest in the entity for that period.
 1463         (5)(4) If a fiduciary elects, or continues an election made
 1464  by its predecessor, to reinvest dividends in shares of stock of
 1465  a distributing corporation or fund, whether evidenced by new
 1466  certificates or entries on the books of the distributing entity,
 1467  the new shares retain their character as income.
 1468         (6)(5)Except as otherwise provided in subsections (10) and
 1469  (11), money received in an entity distribution is a capital
 1470  distribution Money is received in partial liquidation:
 1471         (a) To the extent that the entity, at or near the time of
 1472  the entity a distribution, indicates that such money is a
 1473  capital distribution in partial liquidation; or
 1474         (b) To the extent that the total amount of money and
 1475  property received by the fiduciary in the entity in a
 1476  distribution or a series of related entity distributions is or
 1477  will be greater than from an entity that is not listed on a
 1478  public stock exchange exceeds 20 percent of the fiduciary’s
 1479  trust’s or estate’s pro rata share of the entity’s gross assets,
 1480  as shown by the entity’s year-end financial statements
 1481  immediately preceding the initial receipt.
 1482  
 1483  This subsection does not apply to an entity to which subsection
 1484  (7) applies.
 1485         (7)(6)In the case of a capital distribution, the amount
 1486  received in an entity distribution allocated to principal must
 1487  be reduced to the extent that the cumulative distributions from
 1488  the entity to the fiduciary Money may not be taken into account
 1489  in determining any excess under paragraph (5)(b), to the extent
 1490  that the cumulative distributions from the entity to the trust
 1491  or the estate allocated to income do not exceed the greater of:
 1492         (a) A cumulative annual return of 3 percent of the entity’s
 1493  carrying value computed at the beginning of each accounting
 1494  period, or portion of an accounting period, during the lookback
 1495  period for the number of years or portion of years that the
 1496  entity was held by the fiduciary. If a fiduciary trustee has
 1497  exercised a power to adjust under s. 738.203 during the lookback
 1498  period, the fiduciary s. 738.104 during any period the interest
 1499  in the entity has been held by the trust, the trustee, in
 1500  determining the total income distributions from that entity,
 1501  must take into account the extent to which the exercise of the
 1502  power resulted in income to the fiduciary trust from that entity
 1503  for that period. If the income of a fiduciary during the
 1504  lookback trust for any period has been computed under ss.
 1505  738.301-738.310, the fiduciary pursuant to s. 738.1041, the
 1506  trustee, in determining the total income distributions from the
 1507  entity for that period, must take into account the portion of
 1508  the unitrust amount paid as a result of the ownership of the
 1509  trust’s interest in the entity for that period; or
 1510         (b) In If the case of an entity is treated as a
 1511  partnership, subchapter S corporation, or a disregarded entity
 1512  under pursuant to the Internal Revenue Code of 1986, as amended,
 1513  the amount of income tax attributable to the fiduciary’s trust’s
 1514  or estate’s ownership share of the entity, based on its pro rata
 1515  share of the taxable income of the entity that distributes the
 1516  money, during the lookback period for the number of years or
 1517  portion of years that the interest in the entity was held by the
 1518  fiduciary, calculated as if all of the that tax was incurred by
 1519  the fiduciary.
 1520         (8) If a fiduciary receives additional information about
 1521  the application of this section to an entity distribution before
 1522  the fiduciary has paid part of the entity distribution to a
 1523  beneficiary, the fiduciary may consider the additional
 1524  information before making the payment to the beneficiary and may
 1525  change a decision to make the payment to the beneficiary.
 1526         (9) If a fiduciary receives additional information about
 1527  the application of this section to an entity distribution after
 1528  the fiduciary has paid part of the entity distribution to a
 1529  beneficiary, the fiduciary is not required to change or recover
 1530  the payment to the beneficiary but may consider that information
 1531  in determining whether to exercise its other powers, including
 1532  but not limited to the power to adjust under s. 738.203.
 1533         (10)(7) The following applies to money or property received
 1534  by a private trustee as a distribution from an investment entity
 1535  described in this subsection:
 1536         (a) The trustee shall first treat as income of the trust
 1537  all of the money or property received from the investment entity
 1538  in the current accounting period year which would be considered
 1539  income under this chapter if the trustee had directly held the
 1540  trust’s pro rata share of the assets of the investment entity.
 1541  For this purpose, all distributions received in the current
 1542  accounting period year must be aggregated.
 1543         (b) The trustee shall next treat as income of the trust any
 1544  additional money or property received in the current accounting
 1545  period year which would have been considered income in the prior
 1546  2 accounting periods years under paragraph (a) if additional
 1547  money or property had been received from the investment entity
 1548  in any of those prior 2 accounting periods years. The amount to
 1549  be treated as income must shall be reduced by any distributions
 1550  of money or property made by the investment entity to the trust
 1551  during the current and the prior 2 accounting periods years
 1552  which were treated as income under this paragraph.
 1553         (c) The remainder of the distribution, if any, is treated
 1554  as principal.
 1555         (d) As used in this subsection, the term:
 1556         1. “Investment entity” means an entity, other than a
 1557  business activity conducted by the trustee described in s.
 1558  738.403 or an entity that is listed on a public stock exchange,
 1559  which is treated as a partnership, subchapter S corporation, or
 1560  disregarded entity under pursuant to the Internal Revenue Code
 1561  of 1986, as amended, and which normally derives 50 percent or
 1562  more of its annual cumulative net income from interest,
 1563  dividends, annuities, royalties, rental activity, or other
 1564  passive investments, including income from the sale or exchange
 1565  of such passive investments.
 1566         2. “Private trustee” means a trustee who is a natural
 1567  person, but is not an independent person as set forth in s.
 1568  738.102 only if the trustee is unable to use the power to adjust
 1569  between income and principal with respect to receipts from
 1570  entities described in this subsection pursuant to s. 738.104. A
 1571  bank, trust company, or other commercial trustee is not
 1572  considered a private trustee.
 1573         (11) A fiduciary shall allocate to principal any money and
 1574  property the fiduciary receives in a distribution or series of
 1575  related distributions from a public entity which are greater
 1576  than 10 percent of the fair market value of the fiduciary’s
 1577  interest in the public entity on the first day of the accounting
 1578  period. The amount to be allocated to principal must be reduced
 1579  to the extent that the cumulative distributions from the entity
 1580  to the fiduciary allocated to income do not exceed a cumulative
 1581  annual return of 3 percent of the fair market value of the
 1582  interest in the entity at the beginning of each accounting
 1583  period, or portion of an accounting period, during the lookback
 1584  period. If a fiduciary has exercised a power to adjust under s.
 1585  738.203 during the lookback period, the fiduciary, in
 1586  determining the total income distributions from that entity,
 1587  must take into account the extent to which the exercise of that
 1588  power resulted in income to the fiduciary from that entity for
 1589  that period. If the income of the fiduciary during the lookback
 1590  period has been computed under ss. 738.301-738.310, the
 1591  fiduciary, in determining the total income distribution from
 1592  that entity for that period, must take into account the portion
 1593  of the unitrust amount paid as a result of the ownership of the
 1594  trust’s interest in the entity for that period. As used in this
 1595  subsection, the term “public entity” means an entity listed on a
 1596  public stock exchange.
 1597         (12)(8) This section must shall be applied before ss.
 1598  738.506 and 738.507 ss. 738.705 and 738.706 and does not modify
 1599  or change any of the provisions of those sections.
 1600         Section 21. Section 738.402, Florida Statutes, is amended
 1601  to read:
 1602         738.402 Distribution from trust or estate.—A fiduciary
 1603  shall allocate to income an amount received as a distribution of
 1604  income, including a unitrust distribution under ss. 738.301
 1605  738.310, from a trust or an estate in which the fiduciary trust
 1606  has an interest, other than an interest a purchased in a trust
 1607  that is an investment entity, and shall interest and allocate to
 1608  principal an amount received as a distribution of principal from
 1609  the such a trust or estate. If a fiduciary purchases, or
 1610  receives from a settlor, an interest in a trust that is an
 1611  investment entity, or a decedent or donor transfers an interest
 1612  in such a trust to a fiduciary, s. 738.401, s. 738.415, or s.
 1613  738.416 or s. 738.608 applies to a receipt from the trust.
 1614         Section 22. Section 738.403, Florida Statutes, is amended
 1615  to read:
 1616         738.403 Business and other activity activities conducted by
 1617  fiduciary.—
 1618         (1) This section applies to If a fiduciary who conducts a
 1619  business or other activity conducted by a fiduciary if the
 1620  fiduciary determines that it is in the best interests of
 1621  interest of all the beneficiaries to account separately for the
 1622  business or other activity instead of:
 1623         (a) Accounting for the business or other activity as part
 1624  of the fiduciary’s trust’s or estate’s general accounting
 1625  records; or
 1626         (b) Conducting the business or other activity through an
 1627  entity described in s. 738.401(1)(b)., the
 1628         (2) A fiduciary may account separately under this section
 1629  maintain separate accounting records for the transactions of a
 1630  the business or another other activity, regardless of whether or
 1631  not the assets of the such business or other activity are
 1632  segregated from other trust or estate assets held by the
 1633  fiduciary.
 1634         (3)(2) A fiduciary who accounts separately under this
 1635  section for a business or other activity:
 1636         (a) May determine:
 1637         1. The extent to which the net cash receipts of the
 1638  business or other activity must be retained for:
 1639         a. Working capital;
 1640         b. The acquisition or replacement of fixed assets; and
 1641         c. Other reasonably foreseeable needs of the business or
 1642  other activity; and working capital, the acquisition or
 1643  replacement of fixed assets, and other reasonably foreseeable
 1644  needs of the business or activity, and
 1645         2. The extent to which the remaining net cash receipts are
 1646  accounted for as principal or income in the fiduciary’s trust’s
 1647  or estate’s general accounting records for the trust.
 1648         (b) May make a determination under paragraph (a) separately
 1649  and differently from the fiduciary’s decisions concerning
 1650  distributions of income or principal; and
 1651         (c) Shall account for the net amount received from the sale
 1652  of an asset of If a fiduciary sells assets of the business or
 1653  other activity, other than a sale in the ordinary course of the
 1654  business or other activity, the fiduciary must account for the
 1655  net amount received as principal in the fiduciary’s trust’s or
 1656  estate’s general accounting records for the trust, to the extent
 1657  the fiduciary determines that the net amount received is no
 1658  longer required in the conduct of the business or other
 1659  activity.
 1660         (4)(3) Activities for which a fiduciary may account
 1661  separately under this section maintain separate accounting
 1662  records include:
 1663         (a) Retail, manufacturing, service, and other traditional
 1664  business activities.
 1665         (b) Farming.
 1666         (c) Raising and selling livestock and other animals.
 1667         (d) Managing Management of rental properties.
 1668         (e) Extracting Extraction of minerals and other natural
 1669  resources.
 1670         (f) Growing and cutting timber operations.
 1671         (g) An activity Activities to which s. 738.414, s. 738.415,
 1672  or s. 738.416 s. 738.607 applies.
 1673         (h) Any other business conducted by the fiduciary.
 1674         Section 23. Section 738.404, Florida Statutes, is created
 1675  to read:
 1676         738.404 Principal receipts.—A fiduciary shall allocate to
 1677  principal:
 1678         (1) To the extent not allocated to income under this
 1679  chapter, an asset received from any of the following:
 1680         (a) An individual during the individual’s lifetime.
 1681         (b) An estate.
 1682         (c) A trust on termination of an income interest.
 1683         (d) A payor under a contract naming the fiduciary as
 1684  beneficiary.
 1685         (2) Except as otherwise provided in ss. 738.401-738.416,
 1686  money or other property received from the sale, exchange,
 1687  liquidation, or change in the form of a principal asset.
 1688         (3) An amount recovered from a third party to reimburse the
 1689  fiduciary because of a disbursement described in s. 738.502(1)
 1690  or for another reason to the extent not based on the loss of
 1691  income.
 1692         (4) Proceeds of property taken by eminent domain except
 1693  that proceeds awarded for loss of income in an accounting period
 1694  are income if a current income beneficiary had a mandatory
 1695  income interest during the period.
 1696         (5) Net income received in an accounting period during
 1697  which there is no beneficiary to which a fiduciary may or must
 1698  distribute income.
 1699         (6) Other receipts as provided in ss. 738.408-738.416.
 1700         Section 24. Section 738.405, Florida Statutes, is created
 1701  to read:
 1702         738.405 Rental property.—To the extent that a fiduciary
 1703  does not account for the management of rental property as a
 1704  business under s. 738.403, the fiduciary shall allocate to
 1705  income an amount received as rent of real or personal property,
 1706  including an amount received for cancellation or renewal of a
 1707  lease. An amount received as a refundable deposit, including a
 1708  security deposit or a deposit that is to be applied as rent for
 1709  future periods:
 1710         (1) Must be added to principal and held subject to the
 1711  terms of the lease, except as otherwise provided by law other
 1712  than this chapter; and
 1713         (2) Is not allocated to income or available for
 1714  distribution to a beneficiary until the fiduciary’s contractual
 1715  obligations have been satisfied with respect to that amount.
 1716         Section 25. Section 738.406, Florida Statutes, is created
 1717  to read:
 1718         738.406 Receipt on obligation to be paid in money.—
 1719         (1) This section does not apply to an obligation to which
 1720  s. 738.409, s. 738.410, s. 738.411, s. 738.412, s. 738.414, s.
 1721  738.415, or s. 738.416 applies.
 1722         (2) A fiduciary shall allocate to income, without provision
 1723  for amortization of premium, an amount received as interest on
 1724  an obligation to pay money to the fiduciary, including an amount
 1725  received as consideration for prepaying principal.
 1726         (3) A fiduciary shall allocate to principal an amount
 1727  received from the sale, redemption, or other disposition of an
 1728  obligation to pay money to the fiduciary.
 1729         (4) A fiduciary shall allocate to income the increment in
 1730  value of a bond or other obligation for the payment of money
 1731  bearing no stated interest but payable or redeemable, at
 1732  maturity or another future time, in an amount that exceeds the
 1733  amount in consideration of which it was issued. If the increment
 1734  in value accrues and becomes payable pursuant to a fixed
 1735  schedule of appreciation, it may be distributed to the
 1736  beneficiary who was the income beneficiary at the time of
 1737  increment from the first principal cash available or, if none is
 1738  available, when the increment is realized by sale, redemption,
 1739  or other disposition. If unrealized increment is distributed as
 1740  income but out of principal, the principal must be reimbursed
 1741  for the increment when realized. If, in the reasonable judgment
 1742  of the fiduciary, exercised in good faith, the ultimate payment
 1743  of the bond principal is in doubt, the fiduciary may withhold
 1744  the payment of incremental interest to the income beneficiary.
 1745         Section 26. Section 738.407, Florida Statutes, is created
 1746  to read:
 1747         738.407 Insurance policy or contract.—
 1748         (1) This section does not apply to a contract to which s.
 1749  738.409 applies.
 1750         (2) Except as otherwise provided in subsection (3), a
 1751  fiduciary shall allocate to principal the proceeds of a life
 1752  insurance policy or other contract received by the fiduciary as
 1753  beneficiary, including a contract that insures against damage
 1754  to, destruction of, or loss of title to an asset. The fiduciary
 1755  shall allocate dividends on an insurance policy to income to the
 1756  extent that premiums on the policy are paid from income and to
 1757  principal to the extent premiums on the policy are paid from
 1758  principal.
 1759         (3) A fiduciary shall allocate to income proceeds of a
 1760  contract that insures the fiduciary against loss of:
 1761         (a) Occupancy or other use by a current income beneficiary;
 1762         (b) Income; or
 1763         (c) Subject to s. 738.403, profits from a business.
 1764         Section 27. Section 738.408, Florida Statutes, is created
 1765  to read:
 1766         738.408 Insubstantial allocation not required.—
 1767         (1) If a fiduciary determines that an allocation between
 1768  income and principal required by s. 738.409, s. 738.410, s.
 1769  738.411, s. 738.412, or s. 738.415 is insubstantial, the
 1770  fiduciary may allocate the entire amount to principal, unless s.
 1771  738.203(5) applies to the allocation.
 1772         (2) A fiduciary may presume an allocation is insubstantial
 1773  under subsection (1) if:
 1774         (a) The amount of the allocation would increase or decrease
 1775  net income in an accounting period, as determined before the
 1776  allocation, by less than 10 percent; and
 1777         (b) The asset producing the receipt to be allocated has a
 1778  carrying value less than 10 percent of the total carrying value
 1779  of the assets owned or held by the fiduciary at the beginning of
 1780  the accounting period.
 1781         (3) The power to make a determination under subsection (1)
 1782  may be:
 1783         (a) Exercised by a cofiduciary in the manner described in
 1784  s. 738.203(6); or
 1785         (b) Released or delegated for a reason described in s.
 1786  738.203(7) and in the manner described in s. 738.203(8).
 1787         Section 28. Section 738.409, Florida Statutes, is created
 1788  to read:
 1789         738.409 Deferred compensation, annuity, or similar
 1790  payment.—
 1791         (1) As used in this section, the term:
 1792         (a) “Internal income of the separate fund” means the amount
 1793  determined under subsection (2).
 1794         (b) “Marital trust” means a trust:
 1795         1. Of which the settlor’s surviving spouse is the only
 1796  current income beneficiary and is entitled to a distribution of
 1797  all the current net income of the trust; and
 1798         2. That qualifies for a marital deduction with respect to
 1799  the settlor’s estate under the Internal Revenue Code or
 1800  comparable law of any state because:
 1801         a. An election to qualify for a marital deduction under s.
 1802  2056(b)(7) of the Internal Revenue Code has been made;
 1803         b. The trust qualified for a marital deduction under s.
 1804  2056(b)(5) of the Internal Revenue Code; or
 1805         c. The trust otherwise qualifies for a marital deduction.
 1806         (c) “Nonseparate fund” means an annuity, a deferred
 1807  compensation plan, a pension plan, or other fund for which the
 1808  value of the participant’s or account owner’s right to receive
 1809  benefits can be determined only by the occurrence of a date or
 1810  event as defined in the instrument governing the fund.
 1811         (d) “Payment” means an amount a fiduciary may receive over
 1812  a fixed number of years or during the life of one or more
 1813  individuals because of services rendered or property transferred
 1814  to the payor in exchange for future amounts the fiduciary may
 1815  receive. The term includes an amount received in money or
 1816  property from the payor’s general assets or from a separate fund
 1817  created by the payor.
 1818         (e) “Percent calculated” means a percent equal to the rate
 1819  determined under s. 7520 of the Internal Revenue Code in effect
 1820  for the month preceding the beginning of the accounting period;
 1821  however, if the percent calculated exceeds 5 percent, it must be
 1822  reduced to 5 percent, and if the percent calculated is less than
 1823  3 percent, it must be increased to 3 percent. Notwithstanding
 1824  the preceding sentence, a fiduciary who is an independent person
 1825  as defined in s. 738.102 may set the percent calculated at a
 1826  percentage no less than 3 percent and no greater than 5 percent.
 1827         (f) “Separate fund” includes a private or commercial
 1828  annuity, an individual retirement account, and a pension,
 1829  profit-sharing, stock-bonus, stock ownership plan, or other
 1830  deferred compensation fund holding assets exclusively for the
 1831  benefit of a participant or account owner.
 1832         (2) For each accounting period, the following rules apply
 1833  to a separate fund:
 1834         (a) The fiduciary may determine the internal income of the
 1835  separate fund as if the separate fund were a trust subject to
 1836  this chapter.
 1837         (b) Alternatively, the fiduciary may deem the internal
 1838  income of the separate fund to equal the percent calculated of
 1839  the value of the separate fund according to the most recent
 1840  statement of value preceding the beginning of the accounting
 1841  period. The fiduciary is not liable for good faith reliance upon
 1842  any valuation supplied by the person or persons in possession of
 1843  the fund. If the fiduciary makes or terminates an election under
 1844  this paragraph, the fiduciary must make such disclosure in a
 1845  trust disclosure document that satisfies the requirements of s.
 1846  736.1008(4)(c).
 1847         (c) If the fiduciary cannot determine the value of the
 1848  separate fund under paragraph (b), the value of the separate
 1849  fund is deemed to equal the present value of the expected future
 1850  payments, as determined under s. 7520 of the Internal Revenue
 1851  Code for the month preceding the beginning of the accounting
 1852  period for which the computation is made.
 1853         (d) The fiduciary may elect the method of determining the
 1854  income of the fund pursuant to this subsection and may change
 1855  the method of determining income of the fund for any future
 1856  accounting period.
 1857         (3) A fiduciary shall allocate a payment received from a
 1858  separate fund during an accounting period to income, to the
 1859  extent of the internal income of the separate fund during the
 1860  period, and allocate the balance to principal.
 1861         (4) The fiduciary of a marital trust shall:
 1862         (a) Withdraw from a separate fund the amount the current
 1863  income beneficiary of the trust requests the fiduciary to
 1864  withdraw, not greater than the amount by which the internal
 1865  income of the separate fund during the accounting period exceeds
 1866  the amount the fiduciary otherwise receives from the separate
 1867  fund during the period.
 1868         (b) Transfer from principal to income the amount the
 1869  current income beneficiary requests the fiduciary to transfer,
 1870  but not greater than the amount by which the internal income of
 1871  the separate fund during the period exceeds the amount the
 1872  fiduciary receives from the separate fund during the period
 1873  after the application of paragraph (a).
 1874         (c) Distribute to the current income beneficiary as income:
 1875         1. The amount of the internal income of the separate fund
 1876  received or withdrawn during the period; and
 1877         2. The amount transferred from principal to income under
 1878  paragraph (b).
 1879         (5) For a trust, other than a marital trust, of which one
 1880  or more current income beneficiaries are entitled to a
 1881  distribution of all the current net income, the fiduciary shall
 1882  transfer from principal to income the amount by which the
 1883  internal income of the separate fund during the accounting
 1884  period exceeds the amount the fiduciary receives from the
 1885  separate fund during the period.
 1886         (6) The fiduciary of a nonseparate fund shall calculate
 1887  internal income of the fund as the percent calculated of the
 1888  present value of the right to receive the remaining payments as
 1889  determined under s. 7520(a)(2) of the Internal Revenue Code for
 1890  the month preceding the beginning of the accounting period.
 1891         (7) If a fiduciary owns a separate fund or a nonseparate
 1892  fund before January 1, 2025, the fiduciary may determine
 1893  internal income, allocate payments, and account for unwithdrawn
 1894  internal income as provided in this section or in the manner
 1895  used by the fiduciary before January 1, 2025. Such fiduciary is
 1896  not required to consider subsection (5). If the fiduciary
 1897  acquires a separate fund or a nonseparate fund on or after
 1898  January 1, 2025, the fiduciary must calculate internal income,
 1899  allocate payments, and account for unwithdrawn internal income
 1900  as provided in this section.
 1901         Section 29. Section 738.603, Florida Statutes, is
 1902  transferred, renumbered as section 738.410, Florida Statutes,
 1903  and amended to read:
 1904         738.410 738.603 Liquidating asset.—
 1905         (1) As used in For purposes of this section, the term
 1906  “liquidating asset” means an asset whose value the value of
 1907  which will diminish or terminate because the asset is expected
 1908  to produce receipts for a period of limited time duration. The
 1909  term includes a leasehold, patent, copyright, royalty right, and
 1910  right to receive payments during a period of for more than 1
 1911  year under an arrangement that does not provide for the payment
 1912  of interest on the unpaid balance. The term does not include a
 1913  payment subject to s. 738.602, resources subject to s. 738.604,
 1914  timber subject to s. 738.605, an activity subject to s. 738.607,
 1915  an asset subject to s. 738.608, or any asset for which the
 1916  fiduciary establishes a reserve for depreciation under s.
 1917  738.703.
 1918         (2) This section does not apply to a receipt that is
 1919  subject to s. 738.401, s. 738.409, s. 738.411, s. 738.412, s.
 1920  738.414, s. 738.415, s. 738.416, or s. 738.503.
 1921         (3) A fiduciary shall allocate to income a receipt produced
 1922  by a liquidating asset to the extent that the receipt does not
 1923  exceed 5 percent of the receipts from the carrying value of the
 1924  asset at the beginning of the accounting period and allocate a
 1925  liquidating asset and the balance to principal the balance of
 1926  the receipt.
 1927         (4) The amount Amounts allocated to principal shall reduce
 1928  the carrying value of the liquidating asset, but not below zero.
 1929  Amounts received in excess of the remaining carrying value must
 1930  be allocated to principal.
 1931         Section 30. Section 738.604, Florida Statutes, is
 1932  transferred, renumbered as section 738.411, Florida Statutes,
 1933  and amended to read:
 1934         738.411 738.604 Minerals, water, and other natural
 1935  resources.—
 1936         (1) To the extent that If a fiduciary does not account for
 1937  a receipt accounts for receipts from an interest in minerals,
 1938  water, or other natural resources as a business under s. 738.403
 1939  pursuant to this section, the fiduciary shall allocate the
 1940  receipt such receipts as follows:
 1941         (a) To income, to the extent received:
 1942         1.If received As nominal delay rental or nominal annual
 1943  rent on a lease;
 1944         2. As a factor for interest or the equivalent of interest
 1945  under an agreement creating a production payment; or
 1946         3. On account of an interest in renewable water;, a receipt
 1947  shall be allocated to income.
 1948         (b) To principal, if received from a production payment, a
 1949  receipt shall be allocated to income if and to the extent that
 1950  subparagraph (a)2. does not apply; or the agreement creating the
 1951  production payment provides a factor for interest or its
 1952  equivalent. The balance shall be allocated to principal.
 1953         (c) Between income and principal equitably, to the extent
 1954  received:
 1955         1. On account of an interest in nonrenewable water;
 1956         2.If an amount received As a royalty, shut-in-well
 1957  payment, take-or-pay payment, or bonus; or, or delay rental is
 1958  more than nominal, 90 percent shall be allocated to principal
 1959  and the balance to income.
 1960         3.(d)If an amount is received From a working interest or
 1961  any other interest not provided for in paragraph (a) or,
 1962  paragraph (b) or subparagraph 1. or subparagraph 2., or
 1963  paragraph (c), 90 percent of the net amount received shall be
 1964  allocated to principal and the balance to income.
 1965         (2) An amount received on account of an interest in water
 1966  that is renewable shall be allocated to income. If the water is
 1967  not renewable, 90 percent of the amount shall be allocated to
 1968  principal and the balance to income.
 1969         (3) This section chapter applies to an interest owned or
 1970  held by a fiduciary regardless of whether or not a settlor
 1971  decedent or donor was extracting minerals, water, or other
 1972  natural resources before the fiduciary owned or held the
 1973  interest became subject to the trust or estate.
 1974         (3) An allocation of a receipt under paragraph (1)(c) is
 1975  presumed to be equitable if the amount allocated to principal is
 1976  equal to the amount allowed by the Internal Revenue Code as a
 1977  deduction for depletion of the interest.
 1978         (4) If a fiduciary trust or estate owns or holds an
 1979  interest in minerals, water, or other natural resources before
 1980  January 1, 2025 on January 1, 2003, the fiduciary may allocate
 1981  receipts from the interest as provided in this section chapter
 1982  or in the manner used by the fiduciary before January 1, 2025
 1983  January 1, 2003. If the fiduciary trust or estate acquires an
 1984  interest in minerals, water, or other natural resources on or
 1985  after January 1, 2025 January 1, 2003, the fiduciary must shall
 1986  allocate receipts from the interest as provided in this section
 1987  chapter.
 1988         Section 31. Section 738.605, Florida Statutes, is
 1989  transferred, renumbered as section 738.412, Florida Statutes,
 1990  and amended to read:
 1991         738.412 738.605 Timber.—
 1992         (1) To the extent that If a fiduciary does not account
 1993  accounts for receipts from the sale of timber and related
 1994  products as a business under s. 738.403 pursuant to this
 1995  section, the fiduciary shall allocate the such net receipts as
 1996  follows:
 1997         (a) To income, to the extent that the amount of timber cut
 1998  removed from the land does not exceed the rate of growth of the
 1999  timber during the accounting periods in which a beneficiary has
 2000  a mandatory income interest;
 2001         (b) To principal, to the extent that the amount of timber
 2002  cut removed from the land exceeds the rate of growth of the
 2003  timber or the net receipts are from the sale of standing timber;
 2004         (c) To or Between income and principal if the net receipts
 2005  are from the lease of land used for growing and cutting timber
 2006  timberland or from a contract to cut timber from land owned by a
 2007  trust or estate by determining the amount of timber cut removed
 2008  from the land under the lease or contract and applying the rules
 2009  in paragraphs (a) and (b); or
 2010         (d) To principal, to the extent that advance payments,
 2011  bonuses, and other payments are not allocated under pursuant to
 2012  paragraph (a), paragraph (b), or paragraph (c).
 2013         (2) In determining net receipts to be allocated under
 2014  pursuant to subsection (1), a fiduciary shall deduct and
 2015  transfer to principal a reasonable amount for depletion.
 2016         (3) This section chapter applies to land owned or held by a
 2017  fiduciary regardless of whether or not a settlor decedent or
 2018  donor was cutting harvesting timber from the land property
 2019  before the fiduciary owned or held the property became subject
 2020  to the trust or estate.
 2021         (4) If a fiduciary trust or estate owns or holds an
 2022  interest in land used for growing and cutting timber before
 2023  January 1, 2025 timberland on January 1, 2003, the fiduciary may
 2024  allocate net receipts from the sale of timber and related
 2025  products as provided in this section chapter or in the manner
 2026  used by the fiduciary before January 1, 2025 January 1, 2003. If
 2027  the fiduciary trust or estate acquires an interest in land used
 2028  for growing and cutting timber on or after January 1, 2025
 2029  timberland after January 1, 2003, the fiduciary must shall
 2030  allocate net receipts from the sale of timber and related
 2031  products as provided in this section chapter.
 2032         Section 32. Section 738.606, Florida Statutes, is
 2033  transferred, renumbered as section 738.413, Florida Statutes,
 2034  and amended to read:
 2035         738.413 738.606Marital deduction property not productive
 2036  of income.—
 2037         (1) If a trust received property for which a gift or estate
 2038  tax marital deduction was under the Internal Revenue Code or
 2039  comparable law of any state is allowed, for all or if part of a
 2040  trust received property satisfying, or if assets are transferred
 2041  to a trust that satisfies the requirements of s. 732.2025(2)(a)
 2042  and (c), and such property has assets have been used in whole or
 2043  in part to satisfy an election by a surviving spouse under s.
 2044  732.2125, and the settlor’s spouse holds a mandatory income
 2045  interest in the trust, the spouse may require the trustee, to
 2046  the extent that the trust assets otherwise do consist of
 2047  property that, in the aggregate, does not provide the spouse
 2048  with sufficient income from or use of the trust assets to
 2049  qualify for the deduction, or to satisfy an election by a
 2050  surviving spouse under s. 732.2125, to make the property
 2051  productive of income within a reasonable time. The trustee may:
 2052         (a) Convert property to property productive of income
 2053  within a reasonable time;
 2054         (b) Exercise the power to adjust under s. 738.203;
 2055         (c) Exercise the power to convert to or from a unitrust
 2056  under s. 738.303; or
 2057         (d) Exercise the fiduciary’s authority under the terms of
 2058  the trust to otherwise provide the surviving spouse with
 2059  sufficient income from the trust assets, or the use of the trust
 2060  assets, to qualify for the marital deduction, or to satisfy an
 2061  election by a surviving spouse under s. 732.2125.
 2062         (2) The trustee may decide which action or combination of
 2063  actions listed in subsection (1) to take.
 2064         (3) Subsection (1) shall apply, and if amounts the trustee
 2065  transfers from principal to income under s. 738.104 and
 2066  distributes to the spouse from principal pursuant to the terms
 2067  of the trust are insufficient to provide the spouse with the
 2068  beneficial enjoyment required to obtain the marital deduction,
 2069  even though, in the case of an elective share trust under s.
 2070  732.2025(2), a marital deduction is not made or is only
 2071  partially made, the spouse may require the trustee of such
 2072  marital trust or elective share trust to make property
 2073  productive of income, convert property within a reasonable time,
 2074  or exercise the power conferred by ss. 738.104 and 738.1041.
 2075         (4) The terms of a trust as defined in s. 738.102 may not
 2076  supersede this section unless such terms explicitly reference
 2077  this section The trustee may decide which action or combination
 2078  of actions to take.
 2079         (2) In cases not governed by subsection (1), proceeds from
 2080  the sale or other disposition of an asset are principal without
 2081  regard to the amount of income the asset produces during any
 2082  accounting period.
 2083         Section 33. Section 738.607, Florida Statutes, is
 2084  transferred, renumbered as section 738.414, Florida Statutes,
 2085  and amended to read:
 2086         738.414 738.607 Derivatives or and options.—
 2087         (1) As used in For purposes of this section, the term
 2088  “derivative” means a contract, an or financial instrument, or
 2089  other arrangement, or a combination of contracts, and financial
 2090  instruments, or other arrangements, of which the value, rights,
 2091  and obligations are, in whole or in part, dependent on or
 2092  derived from an underlying which gives a trust the right or
 2093  obligation to participate in some or all changes in the price of
 2094  a tangible or intangible asset, a or group of tangible or
 2095  intangible assets, an index, or an occurrence of an event. The
 2096  term includes stocks, fixed income securities, and financial
 2097  instruments and arrangements based on indices, commodities,
 2098  interest rates, weather-related events, and credit-default
 2099  events assets, or changes in a rate, an index of prices or
 2100  rates, or other market indicator for an asset or a group of
 2101  assets.
 2102         (2) To the extent that a fiduciary does not account for a
 2103  transaction in derivatives as a business under s. 738.403 for
 2104  transactions in derivatives, the fiduciary shall allocate 10
 2105  percent of to principal receipts from the transaction and 10
 2106  percent of and disbursements made in connection with the
 2107  transaction to income and allocate the balance to principal
 2108  those transactions.
 2109         (3) Subsection (4) applies if:
 2110         (a) A fiduciary:
 2111         1.If a fiduciary Grants an option to buy property from a
 2112  the trust, regardless of or estate whether or not the trust or
 2113  estate owns the property when the option is granted;,
 2114         2. Grants an option that permits another person to sell
 2115  property to the trust; or
 2116         3.estate, or Acquires an option to buy property for the
 2117  trust or estate or an option to sell an asset owned by the trust
 2118  or estate;, and
 2119         (b) The fiduciary or other owner of the asset is required
 2120  to deliver the asset if the option is exercised, an amount
 2121  received for granting the option shall be allocated to
 2122  principal. An amount paid to acquire the option shall be paid
 2123  from principal.
 2124         (4) If this subsection applies, the fiduciary must allocate
 2125  10 percent to income and allocate the balance to principal of
 2126  the following amounts:
 2127         (a) An amount received for granting the option;
 2128         (b) An amount paid to acquire the option; and
 2129         (c)A Gain or loss realized on upon the exercise, exchange,
 2130  settlement, offset, closing, or expiration of the option of an
 2131  option, including an option granted to a grantor of the trust or
 2132  estate for services rendered, shall be allocated to principal.
 2133         Section 34. Section 738.608, Florida Statutes, is
 2134  transferred, renumbered as section 738.415, Florida Statutes,
 2135  and amended to read:
 2136         738.415 738.608 Asset-backed securities.—
 2137         (1) Except as otherwise provided in subsection (2), a
 2138  fiduciary shall allocate to income a receipt from or related to
 2139  an asset-backed security, as defined in s. 738.102, to the
 2140  extent that the payor identifies the payment as being from For
 2141  purposes of this section, “asset-backed security” means an asset
 2142  the value of which is based upon the right given the owner to
 2143  receive distributions from the proceeds of financial assets that
 2144  provide collateral for the security. The term includes an asset
 2145  that gives the owner the right to receive from the collateral
 2146  financial assets only the interest or other current return and
 2147  allocate to principal the balance of the receipt or only the
 2148  proceeds other than interest or current return. The term does
 2149  not include an asset to which s. 738.401 or s. 738.602 applies.
 2150         (2) If a fiduciary receives one or more payments in
 2151  exchange for part or all of the fiduciary’s interest in an
 2152  asset-backed security, including a liquidation or redemption of
 2153  the fiduciary’s interest in the security trust or estate
 2154  receives a payment from interest or other current return and
 2155  from other proceeds of the collateral financial assets, the
 2156  fiduciary must shall allocate to income 10 percent of receipts
 2157  from the transaction and 10 percent of disbursements made in
 2158  connection with the transaction, and allocate to principal the
 2159  portion of the payment which the payor identifies as being from
 2160  interest or other current return and allocate the balance of the
 2161  receipts and disbursements payment to principal.
 2162         (3) If a trust or estate receives one or more payments in
 2163  exchange for the trust’s or estate’s entire interest in an
 2164  asset-backed security during a single accounting period, the
 2165  fiduciary shall allocate the payments to principal. If a payment
 2166  is one of a series of payments that will result in the
 2167  liquidation of the trust’s or estate’s interest in the security
 2168  over more than a single accounting period, the fiduciary shall
 2169  allocate 10 percent of the payment to income and the balance to
 2170  principal.
 2171         Section 35. Section 738.416, Florida Statutes, is created
 2172  to read:
 2173         738.416 Other financial instrument or arrangement.—A
 2174  fiduciary shall allocate receipts from or related to a financial
 2175  instrument or arrangement not otherwise addressed by this
 2176  chapter. The allocation must be consistent with ss. 738.414 and
 2177  738.415.
 2178         Section 36. Section 738.501, Florida Statutes, is amended
 2179  to read:
 2180         (Substantial rewording of section. See
 2181         s. 738.501, F.S., for present text.)
 2182         738.501 Disbursement from income.—Subject to s. 738.504,
 2183  and except as otherwise provided in s. 738.601(3)(b) or (c), a
 2184  fiduciary shall disburse from income:
 2185         (1) One-half of:
 2186         (a) The regular compensation of the fiduciary and of any
 2187  person providing investment advisory, custodial, or other
 2188  services to the fiduciary to the extent that income is
 2189  sufficient; and
 2190         (b) An expense for an accounting, judicial or nonjudicial
 2191  proceeding, or other matter that involves both income and
 2192  successive interests to the extent income is sufficient.
 2193         (2) The balance of the disbursements described in
 2194  subsection (1), to the extent that a fiduciary who is an
 2195  independent person determines that making those disbursements
 2196  from income would be in the interests of the beneficiaries.
 2197         (3) Any other ordinary expense incurred in connection with
 2198  administration, management, or preservation of property and
 2199  distribution of income, including interest, an ordinary repair,
 2200  a regularly recurring tax assessed against principal, and an
 2201  expense of an accounting, judicial or nonjudicial proceeding, or
 2202  other matter that involves primarily an income interest, to the
 2203  extent that income is sufficient.
 2204         (4) A premium on insurance covering loss of a principal
 2205  asset or income from or use of the asset.
 2206         Section 37. Section 738.502, Florida Statutes, is amended
 2207  to read:
 2208         (Substantial rewording of section. See
 2209         s. 738.502, F.S., for present text.)
 2210         738.502 Disbursement from principal.—
 2211         (1) Subject to s. 738.505, and except as otherwise provided
 2212  in s. 738.601(3)(b), a fiduciary shall disburse all of the
 2213  following from principal:
 2214         (a) The balance of the disbursements described in s.
 2215  738.501(1) and (3), after application of s. 738.501(2).
 2216         (b) The fiduciary’s compensation calculated on principal as
 2217  a fee for acceptance, distribution, or termination.
 2218         (c) A payment of an expense to prepare for or execute a
 2219  sale or other disposition of property.
 2220         (d) A payment on the principal of a trust debt.
 2221         (e) A payment of an expense of an accounting, judicial or
 2222  nonjudicial proceeding, or other matter that involves primarily
 2223  principal, including a proceeding to construe the terms of the
 2224  trust or protect property.
 2225         (f) A payment of a premium for insurance, including title
 2226  insurance, not described in s. 738.501(4) of which the fiduciary
 2227  is the owner and beneficiary.
 2228         (g) A payment of estate, inheritance, and other transfer
 2229  taxes, including penalties, apportioned to the trust.
 2230         (h) A payment related to environmental matters including:
 2231         1. Reclamation;
 2232         2. Assessing environmental conditions;
 2233         3. Remedying and removing environmental contamination;
 2234         4. Monitoring remedial activities and the release of
 2235  substances;
 2236         5. Preventing future releases of substances;
 2237         6. Collecting amounts from persons liable or potentially
 2238  liable for the costs of the activities described in
 2239  subparagraphs 1.-5.;
 2240         7. Penalties imposed under environmental laws or
 2241  regulations;
 2242         8. Other actions to comply with environmental laws or
 2243  regulations;
 2244         9. Statutory or common law claims by third parties; and
 2245         10. Defending claims based on environmental matters.
 2246         (i) A payment of a premium for insurance for matters
 2247  described in paragraph (h).
 2248         (2) If a principal asset is encumbered with an obligation
 2249  that requires income from the asset to be paid directly to a
 2250  creditor, the fiduciary must transfer from principal to income
 2251  an amount equal to the income paid to the creditor in reduction
 2252  of the principal balance of the obligation.
 2253         Section 38. Section 738.503, Florida Statutes, is amended
 2254  to read:
 2255         (Substantial rewording of section. See
 2256         s. 738.503, F.S., for present text.)
 2257         738.503 Transfers from income to principal for
 2258  depreciation.—
 2259         (1) For purposes of this section, “depreciation” means a
 2260  reduction in value due to wear, tear, decay, corrosion, or
 2261  gradual obsolescence of a tangible asset having a useful life of
 2262  more than 1 year.
 2263         (2) A fiduciary may transfer to principal a reasonable
 2264  amount of the net cash receipts from a principal asset that is
 2265  subject to depreciation but may not transfer any amount for
 2266  depreciation:
 2267         (a) Of the part of real property used or available for use
 2268  by a beneficiary as a residence;
 2269         (b) Of tangible personal property held or made available
 2270  for the personal use or enjoyment of a beneficiary; or
 2271         (c) Under this section, to the extent that the fiduciary
 2272  accounts:
 2273         1. Under s. 738.410 for the asset; or
 2274         2. Under s. 738.403 for the business or other activity in
 2275  which the asset is used.
 2276         (3) An amount transferred to principal under this section
 2277  need not be separately held.
 2278         Section 39. Section 738.504, Florida Statutes, is amended
 2279  to read:
 2280         (Substantial rewording of section. See
 2281         s. 738.504, F.S., for present text.)
 2282         738.504 Reimbursement of income from principal.—
 2283         (1) If a fiduciary makes or expects to make an income
 2284  disbursement described in subsection (2), the fiduciary may
 2285  transfer an appropriate amount from principal to income in one
 2286  or more accounting periods to reimburse income.
 2287         (2) To the extent that the fiduciary has not been and does
 2288  not expect to be reimbursed by a third party, income
 2289  disbursements to which subsection (1) applies include:
 2290         (a) An amount chargeable to principal but paid from income
 2291  because principal is illiquid;
 2292         (b) A disbursement made to prepare property for sale,
 2293  including improvements and commissions; and
 2294         (c) A disbursement described in s. 738.502(1).
 2295         (3) If an asset whose ownership gives rise to an income
 2296  disbursement becomes subject to a successive interest after an
 2297  income interest ends, the fiduciary may continue to make
 2298  transfers under subsection (1).
 2299         Section 40. Section 738.704, is transferred, renumbered as
 2300  section 738.505, Florida Statutes, and amended to read:
 2301         738.505 738.704Reimbursement of principal from income
 2302  Transfers from income to reimburse principal.—
 2303         (1) If a fiduciary makes or expects to make a principal
 2304  disbursement described in subsection (2) this section, the
 2305  fiduciary may transfer an appropriate amount from income to
 2306  principal in one or more accounting periods to reimburse
 2307  principal or to provide a reserve for future principal
 2308  disbursements.
 2309         (2) Principal disbursements to which subsection (1) applies
 2310  include the following, but only To the extent that a the
 2311  fiduciary has not been and does not expect to be reimbursed by a
 2312  third party, principal disbursements to which subsection (1)
 2313  applies include:
 2314         (a) An amount chargeable to income but paid from principal
 2315  because income is not sufficient; the amount is unusually large.
 2316         (b) The cost of an improvement to principal, whether a
 2317  change to an existing asset or the construction of a new asset,
 2318  including a special assessment; Disbursements made to prepare
 2319  property for rental, including tenant allowances, leasehold
 2320  improvements, and broker’s commissions.
 2321         (c) A disbursement made to prepare property for rental,
 2322  including tenant allowances, leasehold improvements, and
 2323  commissions; Disbursements described in s. 738.702(1)(g).
 2324         (d) A periodic payment on an obligation secured by a
 2325  principal asset, to the extent the amount transferred from
 2326  income to principal for depreciation is less than the periodic
 2327  payment; and
 2328         (e) A disbursement described in s. 738.502(1).
 2329         (3) If an the asset whose the ownership of which gives rise
 2330  to a principal disbursement the disbursements becomes subject to
 2331  a successive income interest after an income interest ends, the
 2332  a fiduciary may continue to make transfers under transfer
 2333  amounts from income to principal as provided in subsection (1).
 2334         (4)To the extent principal cash is not sufficient to pay
 2335  the principal balance of payments due on mortgaged property,
 2336  income may be applied to such payment in order to avoid a
 2337  default on any mortgage or security interest securing the
 2338  property. Income shall be reimbursed for such payments out of
 2339  the first available principal cash. If the asset the ownership
 2340  of which gives rise to the disbursements described in this
 2341  subsection becomes subject to a successive income interest after
 2342  an income interest ends, all rights of the initial income
 2343  interest shall lapse, and amounts remaining due from principal
 2344  shall not be a lien on the assets of the trust.
 2345         Section 41. Section 738.705, Florida Statutes, is
 2346  transferred, renumbered as section 738.506, Florida Statutes,
 2347  and amended to read:
 2348         738.506 738.705 Income taxes.—
 2349         (1) A tax required to be paid by a fiduciary which is based
 2350  on receipts allocated to income must shall be paid from income.
 2351         (2) A tax required to be paid by a fiduciary which is based
 2352  on receipts allocated to principal must shall be paid from
 2353  principal, even if the tax is called an income tax by the taxing
 2354  authority.
 2355         (3) Subject to subsection (4) and ss. 738.504, 738.505, and
 2356  738.507, a tax required to be paid by a fiduciary on a the
 2357  trust’s or estate’s share of an entity’s taxable income in an
 2358  accounting period must shall be paid from proportionately:
 2359         (a) From Income and principal proportionately to the
 2360  allocation between income and principal of to the extent
 2361  receipts from the entity in the period are allocated to income.
 2362         (b) From principal to the extent receipts from the entity
 2363  are allocated to principal.
 2364         (c)From Principal to the extent that the tax exceeds the
 2365  income taxes payable by the trust or estate exceed the total
 2366  receipts from the entity in the period.
 2367         (4) After applying subsections (1), (2), and (3), a
 2368  fiduciary shall adjust income or principal receipts, to the
 2369  extent the taxes that the fiduciary pays are reduced because of
 2370  a deduction for a payment made to a beneficiary.
 2371         (5)Subject to the limitations and excluded assets provided
 2372  under s. 736.08145, a reimbursement of state or federal income
 2373  tax elected to be made by a fiduciary pursuant to s. 736.08145
 2374  must be allocated and paid under paragraphs (3)(a) and (b) After
 2375  applying subsections (1)-(3), the fiduciary shall adjust income
 2376  or principal receipts to the extent that the trust’s or estate’s
 2377  income taxes are reduced, but not eliminated, because the trust
 2378  or estate receives a deduction for payments made to a
 2379  beneficiary. The amount distributable to that beneficiary as
 2380  income as a result of this adjustment shall be equal to the cash
 2381  received by the trust or estate, reduced, but not below zero, by
 2382  the entity’s taxable income allocable to the trust or estate
 2383  multiplied by the trust’s or estate’s income tax rate. The
 2384  reduced amount shall be divided by the difference between 1 and
 2385  the trust’s or estate’s income tax rate in order to determine
 2386  the amount distributable to that beneficiary as income before
 2387  giving effect to other receipts or disbursements allocable to
 2388  that beneficiary’s interest.
 2389         Section 42. Section 738.706, Florida Statutes, is
 2390  transferred, renumbered as section 738.507, Florida Statutes,
 2391  and amended to read:
 2392         738.507 738.706Adjustment Adjustments between principal
 2393  and income because of taxes.—
 2394         (1) A fiduciary may make an adjustment adjustments between
 2395  principal and income and principal to offset the shifting of
 2396  economic interests or tax benefits between current income
 2397  beneficiaries and successor remainder beneficiaries which arises
 2398  arise from:
 2399         (a) An election or decision Elections and decisions, other
 2400  than those described in paragraph (b), that the fiduciary makes
 2401  from time to time regarding a tax matter, other than a decision
 2402  to claim an income tax deduction to which subsection (2) applies
 2403  matters;
 2404         (b) An income tax or any other tax that is imposed on upon
 2405  the fiduciary or a beneficiary as a result of a transaction
 2406  involving the fiduciary or a distribution by from the fiduciary
 2407  estate or trust; or
 2408         (c) The Ownership by the fiduciary an estate or trust of an
 2409  interest in an entity a part of whose taxable income, regardless
 2410  of whether or not distributed, is includable in the taxable
 2411  income of the fiduciary estate, trust, or a beneficiary; or
 2412         (d)An election or decision a fiduciary makes to reimburse
 2413  any tax under s. 736.08145.
 2414         (2) If the amount of an estate tax marital deduction or
 2415  charitable contribution deduction is reduced because a fiduciary
 2416  deducts an amount paid from principal for income tax purposes
 2417  instead of deducting it such amount for estate tax purposes,
 2418  and, as a result, estate taxes paid from principal are increased
 2419  and income taxes paid by a fiduciary or a an estate, trust, or
 2420  beneficiary are decreased, the fiduciary shall charge each
 2421  estate, trust, or beneficiary that benefits from the decrease in
 2422  income tax to shall reimburse the principal from which the
 2423  increase in estate tax is paid. The total reimbursement must
 2424  shall equal the increase in the estate tax, to the extent that
 2425  the principal used to pay the increase would have qualified for
 2426  a marital deduction or charitable contribution deduction but for
 2427  the payment. The proportionate share of the reimbursement for
 2428  each fiduciary estate, trust, or beneficiary whose income taxes
 2429  are reduced must shall be the same as its such estate’s,
 2430  trust’s, or beneficiary’s proportionate share of the total
 2431  decrease in income tax. An estate or trust shall reimburse
 2432  principal from income.
 2433         (3)A fiduciary that charges a beneficiary under subsection
 2434  (2) may offset the charge by obtaining payment from the
 2435  beneficiary, withholding an amount from future distributions to
 2436  the beneficiary, or adopting another method or combination of
 2437  methods.
 2438         Section 43. Section 738.508, Florida Statutes, is created
 2439  to read:
 2440         738.508Apportionment of property expenses between tenant
 2441  and remainderman.—
 2442         (1)For purposes of this section, the term:
 2443         (a)“Remainderman” means the holder of the remainder
 2444  interests after the expiration of a tenant’s estate in property.
 2445         (b)“Tenant” means the holder of an estate for life or term
 2446  of years in real property or personal property, or both.
 2447         (2)If a trust has not been created, expenses shall be
 2448  apportioned between the tenant and remainderman as follows:
 2449         (a)The following expenses are allocated to and shall be
 2450  paid by the tenant:
 2451         1.All ordinary expenses incurred in connection with the
 2452  administration, management, or preservation of the property,
 2453  including interest, ordinary repairs, regularly recurring taxes
 2454  assessed against the property, and expenses of a proceeding or
 2455  other matter that concerns primarily the tenant’s estate or use
 2456  of the property.
 2457         2.Recurring premiums on insurance covering the loss of the
 2458  property or the loss of income from or use of the property.
 2459         3.Any of the expenses described in subparagraph (b)3.
 2460  which are attributable to the use of the property by the tenant.
 2461         (b)The following expenses are allocated to and shall be
 2462  paid by the remainderman:
 2463         1.Payments on the principal of a debt secured by the
 2464  property, except to the extent that the debt is for expenses
 2465  allocated to the tenant.
 2466         2.Expenses of a proceeding or other matter that concerns
 2467  primarily the title to the property, other than title to the
 2468  tenant’s estate.
 2469         3.Except as provided in subparagraph (a)3., expenses
 2470  related to environmental matters, including reclamation,
 2471  assessing environmental conditions, remedying and removing
 2472  environmental contamination, monitoring remedial activities and
 2473  the release of substances, preventing future releases of
 2474  substances, collecting amounts from persons liable or
 2475  potentially liable for the costs of such activities, penalties
 2476  imposed under environmental laws or regulations and other
 2477  payments made to comply with those laws or regulations,
 2478  statutory or common law claims by third parties, and defending
 2479  claims based on environmental matters.
 2480         4.Extraordinary repairs.
 2481         (c)If the tenant or remainderman incurred an expense for
 2482  the benefit of his or her own estate without consent or
 2483  agreement of the other, he or she must pay such expense in full.
 2484         (d)Except as provided in paragraph (c), the cost of, or
 2485  special taxes or assessments for, an improvement representing an
 2486  addition of value to property forming part of the principal
 2487  shall be paid by the tenant if the improvement is not reasonably
 2488  expected to outlast the estate of the tenant. In all other
 2489  cases, only a part shall be paid by the tenant while the
 2490  remainder shall be paid by the remainderman. The part payable by
 2491  the tenant is ascertainable by taking that percentage of the
 2492  total that is found by dividing the present value of the
 2493  tenant’s estate by the present value of an estate of the same
 2494  form as that of the tenant, except that it is limited for a
 2495  period corresponding to the reasonably expected duration of the
 2496  improvement. The computation of present values of the estates
 2497  shall be made by using the rate determined under s. 7520(a)(2)
 2498  of the Internal Revenue Code then in effect and, in the case of
 2499  an estate for life, the official mortality tables then in effect
 2500  under s. 7520 of the Internal Revenue Code. Other evidence of
 2501  duration or expectancy may not be considered.
 2502         (3)This section does not apply to the extent that it is
 2503  inconsistent with the instrument creating the estates, the
 2504  agreement of the parties, or the specific direction of the
 2505  Internal Revenue Code taxing or other applicable law.
 2506         (4)The common law applicable to tenants and remaindermen
 2507  supplements this section, except as modified by this section or
 2508  other laws.
 2509         Section 44. Section 738.601, Florida Statutes, is amended
 2510  to read:
 2511         (Substantial rewording of section. See
 2512         s. 738.601, F.S., for present text.)
 2513         738.601Determination and distribution of net income.—
 2514         (1)This section applies when:
 2515         (a)The death of an individual results in the creation of
 2516  an estate or trust; or
 2517         (b)An income interest in a trust terminates, whether the
 2518  trust continues or is distributed.
 2519         (2)A fiduciary of an estate or trust with an income
 2520  interest that terminates shall determine, under subsection (6)
 2521  and ss. 738.401-738.508 and 738.701-738.703, the amount of net
 2522  income and net principal receipts received from property
 2523  specifically given to a beneficiary. The fiduciary shall
 2524  distribute the net income and net principal receipts to the
 2525  beneficiary who is to receive the specific property.
 2526         (3)A fiduciary shall determine the income and net income
 2527  of an estate or income interest in a trust which terminates,
 2528  other than the amount of net income determined under subsection
 2529  (2), under ss. 738.401-738.508 and 738.701-738.703, and by:
 2530         (a)Including in net income all income from property used
 2531  or sold to discharge liabilities.
 2532         (b)Paying from income or principal, in the fiduciary’s
 2533  discretion, fees of attorneys, accountants, and fiduciaries;
 2534  court costs and other expenses of administration; and interest
 2535  on estate and inheritance taxes and other taxes imposed because
 2536  of the decedent’s death, but the fiduciary may pay the expenses
 2537  from income of property passing to a trust for which the
 2538  fiduciary claims an estate tax marital or charitable deduction
 2539  under the Internal Revenue Code or comparable law of any state
 2540  only to the extent that:
 2541         1.The payment of the those expenses from income will not
 2542  cause the reduction or loss of the deduction; or
 2543         2.The fiduciary makes an adjustment under s. 738.507(2).
 2544         (c)Paying from principal other disbursements made or
 2545  incurred in connection with the settlement of the estate or the
 2546  winding up of an income interest that terminates, including:
 2547         1.To the extent authorized by the decedent’s will, the
 2548  terms of the trust, or applicable law, debts, funeral expenses,
 2549  disposition of remains, family allowances, estate and
 2550  inheritance taxes, and other taxes imposed because of the
 2551  decedent’s death; and
 2552         2.Related penalties apportioned by the decedent’s will,
 2553  the terms of the trust, or applicable law to the estate or
 2554  income interest that terminates.
 2555         (4)If a decedent’s will or the terms of a trust provide
 2556  for the payment of interest or the equivalent of interest to a
 2557  beneficiary who receives a pecuniary amount outright, the
 2558  fiduciary shall make the payment from net income determined
 2559  under subsection (3) or from principal to the extent that net
 2560  income is insufficient.
 2561         (5)A fiduciary shall distribute net income remaining after
 2562  payments required by subsection (4) in the manner described in
 2563  s. 738.602 to all other beneficiaries, including a beneficiary
 2564  who receives a pecuniary amount in trust, even if the
 2565  beneficiary holds an unqualified power to withdraw assets from
 2566  the trust or other presently exercisable general power of
 2567  appointment over the trust.
 2568         (6)A fiduciary may not reduce principal or income receipts
 2569  from property described in subsection (2) because of a payment
 2570  described in s. 738.501 or s. 738.502 to the extent that the
 2571  decedent’s will, the terms of the trust, or applicable law
 2572  requires the fiduciary to make the payment from assets other
 2573  than the property or that the fiduciary recovers or expects to
 2574  recover the payment from a third party. The net income and
 2575  principal receipts from the property must be determined by
 2576  including the amount the fiduciary receives or pays regarding
 2577  the property, whether the amount accrued or became due before,
 2578  on, or after the date of the decedent’s death or an income
 2579  interest’s terminating event, and making a reasonable provision
 2580  for an amount the estate or income interest may become obligated
 2581  to pay after the property is distributed.
 2582         Section 45. Section 738.602, Florida Statutes, is amended
 2583  to read:
 2584         (Substantial rewording of section. See
 2585         s. 738.602, F.S., for present text.)
 2586         738.602Distribution to successor beneficiary.—
 2587         (1)Except to the extent that ss. 738.301-738.310 apply for
 2588  a beneficiary that is a trust, each beneficiary described in s.
 2589  738.601(5) is entitled to receive a share of the net income
 2590  equal to the beneficiary’s fractional interest in undistributed
 2591  principal assets, using carrying values as of the distribution
 2592  date. If a fiduciary makes more than one distribution of assets
 2593  to beneficiaries to which this section applies, each
 2594  beneficiary, including a beneficiary who does not receive part
 2595  of the distribution, is entitled, as of each distribution date,
 2596  to a share of the net income the fiduciary received after the
 2597  decedent’s death, an income interest’s other terminating event,
 2598  or the preceding distribution by the fiduciary.
 2599         (2)In determining a beneficiary’s share of net income
 2600  under subsection (1), the following rules apply:
 2601         (a)The beneficiary is entitled to receive a share of the
 2602  net income equal to the beneficiary’s fractional interest in the
 2603  undistributed principal assets immediately before the
 2604  distribution date.
 2605         (b)The beneficiary’s fractional interest under paragraph
 2606  (a) must be calculated:
 2607         1.On the aggregate carrying value of the assets as of the
 2608  distribution date; and
 2609         2.Reduced by:
 2610         a.Any liabilities of the estate or trust;
 2611         b.Property specifically given to a beneficiary under the
 2612  decedent’s will or the terms of the trust; and
 2613         c.Property required to pay pecuniary amounts not in trust.
 2614         (c)If a disproportionate distribution of principal is made
 2615  to any beneficiary, the respective fractional interests of all
 2616  beneficiaries in the undistributed principal assets must be
 2617  recomputed by:
 2618         1.Adjusting the carrying value of the principal assets to
 2619  their fair market value before the distribution;
 2620         2.Reducing the fractional interest of the recipient of the
 2621  disproportionate distribution in the remaining principal assets
 2622  by the fair market value of the principal distribution; and
 2623         3.Recomputing the fractional interests of all
 2624  beneficiaries in the remaining principal assets based upon the
 2625  now restated carrying values.
 2626         (d)The distribution date under paragraph (a) may be the
 2627  date as of which the fiduciary calculates the value of the
 2628  assets if that date is reasonably near the date on which the
 2629  assets are distributed. All distributions to a beneficiary must
 2630  be valued based on the assets’ fair market value on the date of
 2631  the distribution.
 2632         (3)To the extent that a fiduciary does not distribute
 2633  under this section all the collected but undistributed net
 2634  income to each beneficiary as of a distribution date, the
 2635  fiduciary shall maintain records showing the interest of each
 2636  beneficiary in the net income.
 2637         (4)If this section applies to income from an asset, a
 2638  fiduciary may apply the requirements in this section to net gain
 2639  or loss realized from the disposition of the asset after the
 2640  decedent’s date of death, an income interest’s terminating
 2641  event, or the preceding distribution by the fiduciary.
 2642         (5)The carrying value or fair market value of trust assets
 2643  shall be determined on an asset-by-asset basis and is conclusive
 2644  if reasonable and determined in good faith. Determinations of
 2645  fair market value based on appraisals performed within 2 years
 2646  before or after the valuation date are presumed reasonable. The
 2647  values of trust assets are conclusively presumed to be
 2648  reasonable and determined in good faith unless proven otherwise
 2649  in a proceeding commenced by or on behalf of a person interested
 2650  in the trust within the time provided in s. 736.1008.
 2651         Section 46. Section 738.701, Florida Statutes, is amended
 2652  to read:
 2653         (Substantial rewording of section. See
 2654         s. 738.701, F.S., for present text.)
 2655         738.701When right to income begins and ends.—
 2656         (1)An income beneficiary is entitled to net income in
 2657  accordance with the terms of the trust from the date an income
 2658  interest begins. The income interest begins on the date
 2659  specified in the terms of the trust or, if no date is specified,
 2660  on the date an asset becomes subject to:
 2661         (a)The trust for the current income beneficiary; or
 2662         (b)A successive interest for a successor beneficiary.
 2663         (2)An asset becomes subject to a trust under paragraph
 2664  (1)(a):
 2665         (a)For an asset that is transferred to the trust during
 2666  the settlor’s life, on the date the asset is transferred;
 2667         (b)For an asset that becomes subject to the trust because
 2668  of a decedent’s death, on the date of the decedent’s death, even
 2669  if there is an intervening period of administration of the
 2670  decedent’s estate; or
 2671         (c)For an asset that is transferred to a fiduciary by a
 2672  third party because of a decedent’s death, on the date of the
 2673  decedent’s death.
 2674         (3)An asset becomes subject to a successive interest under
 2675  paragraph (1)(b) on the day after the preceding income interest
 2676  ends, as determined under subsection (4), even if there is an
 2677  intervening period of administration to wind up the preceding
 2678  income interest.
 2679         (4)An income interest ends on the day before an income
 2680  beneficiary dies or another terminating event occurs, or on the
 2681  last day of a period during which there is no beneficiary to
 2682  which a fiduciary may or must distribute income.
 2683         Section 47. Section 738.702, Florida Statutes, is amended
 2684  to read:
 2685         (Substantial rewording of section. See
 2686         s. 738.702, F.S., for present text.)
 2687         738.702Apportionment of receipts and disbursements when
 2688  decedent dies or income interest begins.—
 2689         (1)A fiduciary shall allocate an income receipt or
 2690  disbursement, other than a receipt to which s. 738.601(2)
 2691  applies, to principal if its due date occurs before the date on
 2692  which:
 2693         (a)For an estate, the decedent died; or
 2694         (b)For a trust or successive interest, an income interest
 2695  begins.
 2696         (2)If the due date of a periodic income receipt or
 2697  disbursement occurs on or after the date on which a decedent
 2698  died or an income interest begins, a fiduciary must allocate the
 2699  receipt or disbursement to income.
 2700         (3)If an income receipt or disbursement is not periodic or
 2701  has no due date, a fiduciary must treat the receipt or
 2702  disbursement under this section as accruing from day to day. The
 2703  fiduciary shall allocate to principal the portion of the receipt
 2704  or disbursement accruing before the date on which a decedent
 2705  died or an income interest begins, and shall allocate to income
 2706  the balance.
 2707         (4)A receipt or disbursement is periodic under subsections
 2708  (2) and (3) if:
 2709         (a)The receipt or disbursement must be paid at regular
 2710  intervals under an obligation to make payments; or
 2711         (b)The payor customarily makes payments at regular
 2712  intervals.
 2713         (5)An item of income or an obligation is due under this
 2714  section on the date the payor is required to make a payment. If
 2715  a payment date is not stated, there is no due date.
 2716         (6)Distributions to shareholders or other owners from an
 2717  entity to which s. 738.401 applies are due:
 2718         (a)On the date fixed by or on behalf of the entity for
 2719  determining the persons entitled to receive the distribution;
 2720         (b)If no date is fixed, on the date of the decision by or
 2721  on behalf of the entity to make the distribution; or
 2722         (c)If no date is fixed and the fiduciary does not know the
 2723  date of the decision by or on behalf of the entity to make the
 2724  distribution, on the date the fiduciary learns of the decision.
 2725         (7)Section 733.817 controls over any provision of this
 2726  chapter to the contrary.
 2727         Section 48. Section 738.703, Florida Statutes, is amended
 2728  to read:
 2729         (Substantial rewording of section. See
 2730         s. 738.703, F.S., for present text.)
 2731         738.703Apportionment when income interest ends.—
 2732         (1)As used in this section, the term “undistributed
 2733  income” means net income received on or before the date on which
 2734  an income interest ends. The term does not include an item of
 2735  income or expense which is due or accrued or net income that has
 2736  been added or is required to be added to principal under the
 2737  terms of the trust.
 2738         (2)Except as otherwise provided in subsection (3), when a
 2739  mandatory income interest of a beneficiary ends, the fiduciary
 2740  shall pay the beneficiary’s share of the undistributed income
 2741  that is not disposed of under the terms of the trust to the
 2742  beneficiary or, if the beneficiary does not survive the date the
 2743  interest ends, to the beneficiary’s estate.
 2744         (3)If a beneficiary has an unqualified power to withdraw
 2745  more than 5 percent of the value of a trust immediately before
 2746  an income interest ends:
 2747         (a)The fiduciary shall allocate to principal the
 2748  undistributed income from the portion of the trust which may be
 2749  withdrawn; and
 2750         (b)Subsection (2) applies only to the balance of the
 2751  undistributed income.
 2752         (4)When a fiduciary’s obligation to pay a fixed annuity or
 2753  a fixed fraction of the value of assets ends, the fiduciary
 2754  shall prorate the final payment as required to preserve income
 2755  tax, gift tax, estate tax, or other tax benefits.
 2756         Section 49. Section 738.801, Florida Statutes, is amended
 2757  to read:
 2758         (Substantial rewording of section. See
 2759         s. 738.801, F.S., for present text.)
 2760         738.801Uniformity of application and construction.—In
 2761  applying and construing this act, consideration shall be given
 2762  to the need to promote uniformity of the law with respect to its
 2763  subject matter among states that enact it.
 2764         Section 50. Section 738.802, Florida Statutes, is amended
 2765  to read:
 2766         (Substantial rewording of section. See
 2767         s. 738.802, F.S., for present text.)
 2768         738.802Relation to Electronic Signatures in Global and
 2769  National Commerce Act.—This chapter modifies, limits, or
 2770  supersedes the Electronic Signatures in Global and National
 2771  Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify,
 2772  limit, or supersede section 101(c) of that act, 15 U.S.C. s.
 2773  7001(c), or authorize electronic delivery of any of the notices
 2774  described in s. 103(b) of that act, 15 U.S.C. s. 7003(b). This
 2775  chapter does not modify, limit, or supersede s. 117.285.
 2776         Section 51. Section 738.803, Florida Statutes, is amended
 2777  to read:
 2778         738.803 Severability.—If any provision of this chapter or
 2779  its application to any person or circumstance is held invalid,
 2780  the invalidity does shall not affect other provisions or
 2781  applications of this chapter which can be given effect without
 2782  the invalid provision or application, and to this end the
 2783  provisions of this chapter are severable.
 2784         Section 52. Section 738.804, Florida Statutes, is amended
 2785  to read:
 2786         738.804 Application.—Except as provided in the terms of the
 2787  trust instrument, the will, or this chapter, this chapter shall
 2788  apply to any receipt or expense received or incurred and any
 2789  disbursement made after January 1, 2025 January 1, 2003, by any
 2790  trust or decedent’s estate, whether established before or after
 2791  January 1, 2025 January 1, 2003, and whether the asset involved
 2792  was acquired by the trustee or personal representative before or
 2793  after January 1, 2025 January 1, 2003. Receipts or expenses
 2794  received or incurred and disbursements made before January 1,
 2795  2025, must January 1, 2003, shall be governed by the law of this
 2796  state in effect at the time of the event, except as otherwise
 2797  expressly provided in the will or terms of the trust or in this
 2798  chapter.
 2799         Section 53. This act shall take effect January 1, 2025.