David S. Luber, LL.M. The Estate Planning Law Firm, P.A.

FLORIDA TRUST ATTORNEY BROWARD COUNTY TRUST ATTORNEY 954 920-2886 FLORIDA INHERITANCE LAWYER  FLORIDA LAW FIRM HELPING WITH TRUST LAW  FLORIDA TRUST STATUTES FLORIDA TRUST LAW FLORIDA STATUES CHAPTER 736 - FLORIDA TRUST STATUTES FLORIDA TRUST CODE - FLORIDA TRUST ADMINISTRATION

Information re Florida Trust Litigation and Disputes

PART I GENERAL PROVISIONS AND DEFINITIONS (ss. 736.0101-736.0112)

PART II

JUDICIAL PROCEEDINGS (ss. 736.0201-736.0207)

PART III

REPRESENTATION (ss. 736.0301-736.0306)

PART IV

CREATION, VALIDITY, MODIFICATION, AND TERMINATION (ss. 736.0401-736.0417)

PART V

CREDITORS' CLAIMS; SPENDTHRIFT AND DISCRETIONARY TRUSTS (ss. 736.0501-736.0507)

PART VI

REVOCABLE TRUSTS (ss. 736.0601-736.0604)

PART VII

OFFICE OF TRUSTEE (ss. 736.0701-736.0709)

PART VIII

DUTIES AND POWERS OF TRUSTEE (ss. 736.0801-736.0817)

PART IX

TRUST INVESTMENTS (s. 736.0901)

PART X

LIABILITY OF TRUSTEE AND RIGHTS OF PERSONS DEALING WITH TRUSTEE (ss. 736.1001-736.1018)

PART XI

RULES OF CONSTRUCTION (ss. 736.1101-736.1108)

PART XII

CHARITABLE TRUSTS (ss. 736.1201-736.1210)

PART XIII

MISCELLANEOUS (ss. 736.1301-736.1303)

PART I

GENERAL PROVISIONS AND DEFINITIONS

736.0101  Short title.

736.0102  Scope.

736.0103  Definitions.

736.0104  Knowledge.

736.0105  Default and mandatory rules.

736.0106  Common law of trusts; principles of equity.

736.0107  Governing law.

736.0108  Principal place of administration.

736.0109  Methods and waiver of notice.

736.0110  Others treated as qualified beneficiaries.

736.0111  Nonjudicial settlement agreements.

736.0112  Qualification of foreign trustee.

736.0101  Short title.--This chapter may be cited as the "Florida Trust Code" and for purposes of this chapter is referred to as the "code."

History.--s. 1, ch. 2006-217.

736.0102  Scope.--This code applies to express trusts, charitable or noncharitable, and trusts created pursuant to a law, judgment, or decree that requires the trust to be administered in the manner of an express trust. This code does not apply to constructive or resulting trusts; conservatorships; custodial arrangements pursuant to the Florida Uniform Transfers to Minors Act; business trusts providing for certificates to be issued to beneficiaries; common trust funds; land trusts under s. 689.071, except to the extent provided in s. 689.071(7); trusts created by the form of the account or by the deposit agreement at a financial institution; voting trusts; security arrangements; liquidation trusts; trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind; and any arrangement under which a person is nominee or escrowee for another.

History.--s. 1, ch. 2006-217; s. 10, ch. 2007-153.

736.0103  Definitions.--Unless the context otherwise requires, in this code:

(1)  "Action," with respect to an act of a trustee, includes a failure to act.

(2)  "Affiliate" means any person or entity that directly or indirectly through one or more intermediaries owns or controls, is owned or controlled by, or is under common control or ownership with, the fiduciary. An affiliate may include, but is not limited to, an investment adviser, administrator, broker, transfer agent, placement agent, servicing agent, registrar, custodian, underwriter, sponsor, distributor, or manager.

(3)  "Ascertainable standard" means a standard relating to an individual's health, education, support, or maintenance within the meaning of s. 2041(b)(1)(A) or s. 2514(c)(1) of the Internal Revenue Code of 1986, as amended.

(4)  "Beneficiary" means a person who:

(a)  Has a present or future beneficial interest in a trust, vested or contingent; or

(b)  Holds a power of appointment over trust property in a capacity other than that of trustee.

(5)  "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose as described in s. 736.0405(1).

(6)  "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance that relates to protection of the environment or human health.

(7)  "General power of appointment" means a power of appointment exercisable in favor of the holder of the power, the power holder's creditors, the power holder's estate, or the creditors of the power holder's estate.

(8)  "Guardian of the person" means a person appointed by the court to make decisions regarding the support, care, education, health, and welfare of a minor or an incapacitated adult. The term does not include a guardian ad litem.

(9)  "Guardian of the property" means a person appointed by the court to administer the estate of a minor or incapacitated adult.

(10)  "Interests of the beneficiaries" means the beneficial interests provided in the terms of the trust.

(11)  "Jurisdiction" with respect to a geographic area, includes a state or country.

(12)  "Power of withdrawal" means a presently exercisable general power of appointment other than a power:

(a)  Exercisable by a trustee and limited by an ascertainable standard; or

(b)  Exercisable by another person only upon consent of the trustee or a person holding an adverse interest.

(13)  "Property" means anything that may be the subject of ownership, real or personal, legal or equitable, or any interest therein.

(14)  "Qualified beneficiary" means a living beneficiary who, on the date the beneficiary's qualification is determined:

(a)  Is a distributee or permissible distributee of trust income or principal;

(b)  Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in paragraph (a) terminated on that date without causing the trust to terminate; or

(c)  Would be a distributee or permissible distributee of trust income or principal if the trust terminated in accordance with its terms on that date.

(15)  "Revocable," as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest.

(16)  "Settlor" means a person, including a testator, who creates or contributes property to a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion.

(17)  "Spendthrift provision" means a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary's interest.

(18)  "State" means any state of the United States and includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.

(19)  "Terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.

(20)  "Trust instrument" means an instrument executed by a settlor that contains terms of the trust, including any amendments to the trust.

(21)  "Trustee" means the original trustee and includes any additional trustee, any successor trustee, and any cotrustee.

History.--s. 1, ch. 2006-217.

736.0104  Knowledge.--

(1)  Subject to subsection (2), a person has knowledge of a fact if the person:

(a)  Has actual knowledge of the fact;

(b)  Has received a notice or notification of the fact; or

(c)  Has reason to know the fact from all the other facts and circumstances known to the person at the time in question.

(2)  An organization that conducts activities through employees has notice or knowledge of a fact involving a trust only from the time the information was received by an employee having responsibility to act on matters involving the trust, or would have been brought to the employee's attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence if the organization maintains reasonable routines for communicating significant information to the employee having responsibility to act on matters involving the trust and there is reasonable compliance with the routines. Reasonable diligence does not require an employee of the organization to communicate information unless the communication is part of the individual's regular duties or the individual knows a matter involving the trust would be materially affected by the information.

History.--s. 1, ch. 2006-217.

736.0105  Default and mandatory rules.--

(1)  Except as otherwise provided in the terms of the trust, this code governs the duties and powers of a trustee, relations among trustees, and the rights and interests of a beneficiary.

(2)  The terms of a trust prevail over any provision of this code except:

(a)  The requirements for creating a trust.

(b)  The duty of the trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.

(c)  The requirement that a trust and its terms be for the benefit of the trust's beneficiaries, and that the trust have a purpose that is lawful, not contrary to public policy, and possible to achieve.

(d)  The periods of limitation for commencing a judicial proceeding.

(e)  The power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice.

(f)  The requirements under s. 736.0108(1) for the designation of a principal place of administration of the trust.

(g)  The jurisdiction and venue provisions in ss. 736.0202, 736.0203, and 736.0204.

(h)  The restrictions on the designation of representative under s. 736.0306.

(i)  The formalities required under s. 736.0403(2) for the execution of a trust.

(j)  The power of the court to modify or terminate a trust under ss. 736.0410-736.04115, except as provided in s. 736.04115(3)(b), and under ss. 736.0413, 736.0415, and 736.0416.

(k)  The ability to modify a trust under s. 736.0412, except as provided in s. 736.0412(4)(b).

(l)  The effect of a spendthrift provision and the rights of certain creditors and assignees to reach a trust as provided in part V.

(m)  The trustee's duty under s. 736.05053 to pay expenses and obligations of the settlor's estate.

(n)  The trustee's duty under s. 736.05055 to file a notice of trust at the settlor's death.

(o)  The right of a trustee under s. 736.0701 to decline a trusteeship and the right of a trustee under s. 736.0705 to resign a trusteeship.

(p)  The power of the court under s. 736.0702 to require, dispense with, modify, or terminate a bond.

(q)  The power of the court under s. 736.0708(2) to adjust a trustee's compensation specified in the terms of the trust that is unreasonably low or high.

(r)  The duty under s. 736.0813(1)(a) and (b) to notify qualified beneficiaries of an irrevocable trust of the existence of the trust, of the identity of the trustee, and of their rights to trust accountings.

(s)  The duty under s. 736.0813(1)(c) and (d) to provide a complete copy of the trust instrument and to account to qualified beneficiaries.

(t)  The duty under s. 736.0813(1)(e) to respond to the request of a qualified beneficiary of an irrevocable trust for relevant information about the assets and liabilities of the trust and the particulars relating to trust administration.

(u)  The effect of an exculpatory term under s. 736.1011.

(v)  The rights under ss. 736.1013-736.1017 of a person other than a trustee or beneficiary.

(w)  The effect of a penalty clause for contesting a trust under s. 736.1108.

History.--s. 1, ch. 2006-217.

736.0106  Common law of trusts; principles of equity.--The common law of trusts and principles of equity supplement this code, except to the extent modified by this code or another law of this state.

History.--s. 1, ch. 2006-217.

736.0107  Governing law.--The meaning and effect of the terms of a trust are determined by:

(1)  The law of the jurisdiction designated in the terms of the trust, provided there is a sufficient nexus to the designated jurisdiction at the time of the creation of the trust or during the trust administration, including, but not limited to, the location of real property held by the trust or the residence or location of an office of the settlor, trustee, or any beneficiary; or

(2)  In the absence of a controlling designation in the terms of the trust, the law of the jurisdiction where the settlor resides at the time the trust is first created.

Notwithstanding subsection (1) or subsection (2), a designation in the terms of a trust is not controlling as to any matter for which the designation would be contrary to a strong public policy of this state.

History.--s. 1, ch. 2006-217.

736.0108  Principal place of administration.--

(1)  Terms of a trust designating the principal place of administration of the trust are valid only if there is a sufficient connection with the designated jurisdiction. Without precluding other means for establishing a sufficient connection, terms of a trust designating the principal place of administration are valid and controlling if:

(a)  A trustee's principal place of business is located in or a trustee is a resident of the designated jurisdiction; or

(b)  All or part of the administration occurs in the designated jurisdiction.

(2)  Unless otherwise validly designated in the trust instrument, the principal place of administration of a trust is the trustee's usual place of business where the records pertaining to the trust are kept or, if the trustee has no place of business, the trustee's residence. In the case of cotrustees, the principal place of administration is:

(a)  The usual place of business of the corporate trustee, if there is only one corporate cotrustee;

(b)  The usual place of business or residence of the individual trustee who is a professional fiduciary, if there is only one such person and no corporate cotrustee; or otherwise

(c)  The usual place of business or residence of any of the cotrustees as agreed on by the cotrustees.

(3)  Notwithstanding any other provision of this section, the principal place of administration of a trust, for which a bank, association, or trust company organized under the laws of this state or bank or savings association organized under the laws of the United States with its main office in this state has been appointed trustee, shall not be moved or otherwise affected solely because the trustee engaged in an interstate merger transaction with an out-of-state bank pursuant to s. 658.2953 in which the out-of-state bank is the resulting bank.

(4)  A trustee is under a continuing duty to administer the trust at a place appropriate to its purposes and its administration.

(5)  Without precluding the right of the court to order, approve, or disapprove a transfer, the trustee, in furtherance of the duty prescribed by subsection (4), may transfer the trust's principal place of administration to another state or to a jurisdiction outside of the United States.

(6)  The trustee shall notify the qualified beneficiaries of a proposed transfer of a trust's principal place of administration not less than 60 days before initiating the transfer. The notice of proposed transfer must include:

(a)  The name of the jurisdiction to which the principal place of administration is to be transferred.

(b)  The address and telephone number at the new location at which the trustee can be contacted.

(c)  An explanation of the reasons for the proposed transfer.

(d)  The date on which the proposed transfer is anticipated to occur.

(e)  The date, not less than 60 days after the notice is provided, by which the qualified beneficiary must notify the trustee of an objection to the proposed transfer.

(7)  The authority of a trustee to act under this section without court approval to transfer a trust's principal place of administration is suspended if a qualified beneficiary files a lawsuit objecting to the proposed transfer on or before the date specified in the notice. The suspension is effective until the lawsuit is dismissed or withdrawn.

(8)  In connection with a transfer of the trust's principal place of administration, the trustee may transfer any of the trust property to a successor trustee designated in the terms of the trust or appointed pursuant to s. 736.0704.

History.--s. 1, ch. 2006-217.

736.0109  Methods and waiver of notice.--

(1)  Notice to a person under this code or the sending of a document to a person under this code must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document. Permissible methods of notice or for sending a document include first-class mail, personal delivery, delivery to the person's last known place of residence or place of business, or a properly directed facsimile or other electronic message.

(2)  Notice otherwise required under this code or a document otherwise required to be sent under this code need not be provided to a person whose identity or location is unknown to and not reasonably ascertainable by the trustee.

(3)  Notice under this code or the sending of a document under this code may be waived by the person to be notified or to whom the document is to be sent.

(4)  Notice of a judicial proceeding must be given as provided in the Florida Rules of Civil Procedure.

History.--s. 1, ch. 2006-217.

736.0110  Others treated as qualified beneficiaries.--

(1)  A charitable organization expressly designated to receive distributions under the terms of a charitable trust has the rights of a qualified beneficiary under this code if the charitable organization, on the date the charitable organization's qualification is being determined:

(a)  Is a distributee or permissible distributee of trust income or principal;

(b)  Would be a distributee or permissible distributee of trust income or principal on termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions; or

(c)  Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

(2)  A person appointed to enforce a trust created for the care of an animal or another noncharitable purpose as provided in s. 736.0408 or s. 736.0409 has the rights of a qualified beneficiary under this code.

(3)  The Attorney General may assert the rights of a qualified beneficiary with respect to a charitable trust having its principal place of administration in this state.

History.--s. 1, ch. 2006-217.

736.0111  Nonjudicial settlement agreements.--

(1)  For purposes of this section, the term "interested persons" means persons whose interest would be affected by a settlement agreement.

(2)  Except as otherwise provided in subsection (3), interested persons may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust.

(3)  A nonjudicial settlement agreement among the trustee and trust beneficiaries is valid only to the extent the terms and conditions could be properly approved by the court. A nonjudicial settlement may not be used to produce a result not authorized by other provisions of this code, including, but not limited to, terminating or modifying a trust in an impermissible manner.

(4)  Matters that may be resolved by a nonjudicial settlement agreement include:

(a)  The interpretation or construction of the terms of the trust.

(b)  The approval of a trustee's report or accounting.

(c)  The direction to a trustee to refrain from performing a particular act or the grant to a trustee of any necessary or desirable power.

(d)  The resignation or appointment of a trustee and the determination of a trustee's compensation.

(e)  The transfer of a trust's principal place of administration.

(f)  The liability of a trustee for an action relating to the trust.

(5)  Any interested person may request the court to approve or disapprove a nonjudicial settlement agreement.

History.--s. 1, ch. 2006-217.

736.0112  Qualification of foreign trustee.--Unless otherwise doing business in this state, local qualification by a foreign trustee is not required for the trustee to receive distribution from a local estate. Nothing in this chapter shall affect the provisions of s. 660.41.

History.--s. 1, ch. 2006-217.

736.0201  Role of court in trust proceedings.

736.0202  Jurisdiction over trustee and beneficiary.

736.0203  Subject matter jurisdiction.

736.0204  Venue.

736.0205  Trust proceedings; dismissal of matters relating to foreign trusts.

736.0206  Proceedings for review of employment of agents and review of compensation of trustee and employees of trust.

736.0207  Trust contests.

736.0201  Role of court in trust proceedings.--

(1)  Except as provided in subsection (5) and s. 736.0206, proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure.

(2)  The court may intervene in the administration of a trust to the extent the court's jurisdiction is invoked by an interested person or as provided by law.

(3)  A trust is not subject to continuing judicial supervision unless ordered by the court.

(4)  A judicial proceeding involving a trust may relate to the validity, administration, or distribution of a trust, including proceedings to:

(a)  Determine the validity of all or part of a trust;

(b)  Appoint or remove a trustee;

(c)  Review trustees' fees;

(d)  Review and settle interim or final accounts;

(e)  Ascertain beneficiaries; determine any question arising in the administration or distribution of any trust, including questions of construction of trust instruments; instruct trustees; and determine the existence or nonexistence of any immunity, power, privilege, duty, or right;

(f)  Obtain a declaration of rights; or

(g)  Determine any other matters involving trustees and beneficiaries.

(5)  A proceeding for the construction of a testamentary trust may be filed in the probate proceeding for the testator's estate. The proceeding shall be governed by the Florida Probate Rules.

History.--s. 2, ch. 2006-217.

736.0202  Jurisdiction over trustee and beneficiary.--

(1)  By accepting the trusteeship of a trust having its principal place of administration in this state or by moving the principal place of administration to this state, the trustee submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.

(2)  With respect to their interests in the trust, the beneficiaries of a trust having its principal place of administration in this state are subject to the jurisdiction of the courts of this state regarding any matter involving the trust. By accepting a distribution from such a trust, the recipient submits personally to the jurisdiction of the courts of this state regarding any matter involving the distribution.

(3)  This section does not preclude other methods of obtaining jurisdiction over a trustee, beneficiary, or other person receiving property from the trust.

History.--s. 2, ch. 2006-217.

736.0203  Subject matter jurisdiction.--The circuit court has original jurisdiction in this state of all proceedings arising under this code.

History.--s. 2, ch. 2006-217.

736.0204  Venue.--Venue for actions and proceedings concerning trusts, including those under s. 736.0201, may be laid in:

(1)  Any county where the venue is proper under chapter 47;

(2)  Any county where the beneficiary suing or being sued resides or has its principal place of business; or

(3)  The county where the trust has its principal place of administration.

History.--s. 2, ch. 2006-217.

736.0205  Trust proceedings; dismissal of matters relating to foreign trusts.--Over the objection of a party, the court shall not entertain proceedings under s. 736.0201 for a trust registered, or having its principal place of administration, in another state unless all interested parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration. The court may condition a stay or dismissal of a proceeding under this section on the consent of any party to jurisdiction of the state where the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.

History.--s. 2, ch. 2006-217.

736.0206  Proceedings for review of employment of agents and review of compensation of trustee and employees of trust.--

(1)  After notice to all interested persons, the court may review the propriety of the employment by a trustee of any person, including any attorney, auditor, investment adviser, or other specialized agent or assistant, and the reasonableness of any compensation paid to that person or to the trustee.

(2)  If the settlor's estate is being probated, and the settlor's trust or the trustee of the settlor's trust is a beneficiary under the settlor's will, the trustee, any person employed by the trustee, or any interested person may have the propriety of employment and the reasonableness of the compensation of the trustee or any person employed by the trustee determined in the probate proceeding.

(3)  The burden of proof of the propriety of the employment and the reasonableness of the compensation shall be on the trustee and the person employed by the trustee. Any person who is determined to have received excessive compensation from a trust for services rendered may be ordered to make appropriate refunds.

(4)  Court proceedings to determine reasonable compensation of a trustee or any person employed by a trustee, if required, are a part of the trust administration process. The costs, including attorney's fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the trust unless the court finds the compensation paid or requested to be substantially unreasonable. The court shall direct from which part of the trust assets the compensation shall be paid.

(5)  The court may determine reasonable compensation for a trustee or any person employed by a trustee without receiving expert testimony. Any party may offer expert testimony after notice to interested persons. If expert testimony is offered, a reasonable expert witness fee shall be awarded by the court and paid from the assets of the trust. The court shall direct from which part of the trust assets the fee shall be paid.

(6)  Persons given notice as provided in this section shall be bound by all orders entered on the complaint.

(7)  In a proceeding pursuant to subsection (2), the petitioner may serve formal notice as provided in the Florida Probate Rules, and such notice shall be sufficient for the court to acquire jurisdiction over the person receiving the notice to the extent of the person's interest in the trust.

History.--s. 2, ch. 2006-217.

736.0207  Trust contests.--An action to contest the validity of all or part of a trust may not be commenced until the trust becomes irrevocable, except this section does not prohibit such action by the guardian of the property of an incapacitated settlor.

History.--s. 2, ch. 2006-217.

736.0301  Representation; basic effect.

736.0302  Representation by holder of power of appointment.

736.0303  Representation by fiduciaries and parents.

736.0304  Representation by person having substantially identical interest.

736.0305  Appointment of representative.

736.0306  Designated representative.

736.0301  Representation; basic effect.--

(1)  Notice, information, accountings, or reports given to a person who may represent and bind another person under this part may serve as a substitute for and have the same effect as notice, information, accountings, or reports given directly to the other person.

(2)  Actions taken by a person who represents the interests of another person under this part are binding on the person whose interests are represented to the same extent as if the actions had been taken by the person whose interests are represented.

(3)  Except as otherwise provided in s. 736.0602, a person under this part who represents a settlor lacking capacity may receive notice and give a binding consent on the settlor's behalf.

(4)  A trustee is not liable for giving notice, information, accountings, or reports to a beneficiary who is represented by another person under this part, and nothing in this part prohibits the trustee from giving notice, information, accountings, or reports to the person represented.

History.--s. 3, ch. 2006-217.

736.0302  Representation by holder of power of appointment.--

(1)  The holder of a power of appointment may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.

(2)  Subsection (1) does not apply to:

(a)  Any matter determined by the court to involve fraud or bad faith by the trustee;

(b)  A power of a trustee to distribute trust property; or

(c)  A power of appointment held by a person while the person is the sole trustee.

History.--s. 3, ch. 2006-217.

736.0303  Representation by fiduciaries and parents.--To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:

(1)  A guardian of the property may represent and bind the estate that the guardian of the property controls.

(2)  An agent having authority to act with respect to the particular question or dispute may represent and bind the principal.

(3)  A trustee may represent and bind the beneficiaries of the trust.

(4)  A personal representative of a decedent's estate may represent and bind persons interested in the estate.

(5)  A parent may represent and bind the parent's unborn child, or the parent's minor child if a guardian of the property for the minor child has not been appointed.

History.--s. 3, ch. 2006-217.

736.0304  Representation by person having substantially identical interest.--Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another person having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented.

History.--s. 3, ch. 2006-217.

736.0305  Appointment of representative.--

(1)  If the court determines that an interest is not represented under this part, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. If not precluded by a conflict of interest, a representative may be appointed to represent several persons or interests.

(2)  A representative may act on behalf of the individual represented with respect to any matter arising under this code, whether or not a judicial proceeding concerning the trust is pending.

(3)  In making decisions, a representative may consider general benefits accruing to the living members of the represented individual's family.

History.--s. 3, ch. 2006-217.

736.0306  Designated representative.--

(1)  If authorized in the trust instrument, one or more persons may be designated to represent and bind a beneficiary and receive any notice, information, accounting, or report.

(2)  Except as otherwise provided in this code, a person designated, as provided in subsection (1) may not represent and bind a beneficiary while that person is serving as trustee.

(3)  Except as otherwise provided in this code, a person designated, as provided in subsection (1) may not represent and bind another beneficiary if the person designated also is a beneficiary, unless:

(a)  That person was named by the settlor; or

(b)  That person is the beneficiary's spouse or a grandparent or descendant of a grandparent of the beneficiary or the beneficiary's spouse.

(4)  No person designated, as provided in subsection (1), is liable to the beneficiary whose interests are represented, or to anyone claiming through that beneficiary, for any actions or omissions to act made in good faith.

History.--s. 3, ch. 2006-217.

736.0401  Methods of creating trust.

736.0402  Requirements for creation.

736.0403  Trusts created in other jurisdictions; formalities required for revocable trusts.

736.0404  Trust purposes.

736.0405  Charitable purposes; enforcement.

736.0406  Effect of fraud, duress, mistake, or undue influence.

736.0407  Evidence of oral trust.

736.0408  Trust for care of an animal.

736.0409  Noncharitable trust without ascertainable beneficiary.

736.0410  Modification or termination of trust; proceedings for disapproval of nonjudicial acts.

736.04113  Judicial modification of irrevocable trust when modification is not inconsistent with settlor's purpose.

736.04115  Judicial modification of irrevocable trust when modification is in best interests of beneficiaries.

736.04117  Trustee's power to invade principal in trust.

736.0412  Nonjudicial modification of irrevocable trust.

736.0413  Cy pres.

736.0414  Modification or termination of uneconomic trust.

736.0415  Reformation to correct mistakes.

736.0416  Modification to achieve settlor's tax objectives.

736.0417  Combination and division of trusts.

736.0401  Methods of creating trust.--A trust may be created by:

(1)  Transfer of property to another person as trustee during the settlor's lifetime or by will or other disposition taking effect on the settlor's death;

(2)  Declaration by the owner of property that the owner holds identifiable property as trustee; or

(3)  Exercise of a power of appointment in favor of a trustee.

History.--s. 4, ch. 2006-217.

736.0402  Requirements for creation.--

(1)  A trust is created only if:

(a)  The settlor has capacity to create a trust.

(b)  The settlor indicates an intent to create the trust.

(c)  The trust has a definite beneficiary or is:

1.  A charitable trust;

2.  A trust for the care of an animal, as provided in s. 736.0408; or

3.  A trust for a noncharitable purpose, as provided in s. 736.0409.

(d)  The trustee has duties to perform.

(e)  The same person is not the sole trustee and sole beneficiary.

(2)  A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.

(3)  A power of a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

History.--s. 4, ch. 2006-217.

736.0403  Trusts created in other jurisdictions; formalities required for revocable trusts.--

(1)  A trust not created by will is validly created if the creation of the trust complies with the law of the jurisdiction in which the trust instrument was executed or the law of the jurisdiction in which, at the time of creation, the settlor was domiciled.

(2)  Notwithstanding subsection (1):

(a)  No trust or confidence of or in any messuages, lands, tenements, or hereditaments shall arise or result unless the trust complies with the provisions of s. 689.05.

(b)  The testamentary aspects of a revocable trust, executed by a settlor who is a domiciliary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state. For purposes of this subsection, the term "testamentary aspects" means those provisions of the trust instrument that dispose of the trust property on or after the death of the settlor other than to the settlor's estate.

(3)  Paragraph (2)(b) does not apply to trusts established as part of an employee annuity described in s. 403 of the Internal Revenue Code of 1986, as amended, an individual retirement account as described in s. 408 of the Internal Revenue Code of 1986, as amended, a Keogh (HR-10) Plan, or a retirement or other plan that is qualified under s. 401 of the Internal Revenue Code of 1986, as amended.

(4)  Paragraph (2)(b) applies to trusts created on or after the effective date of this code. Section 737.111, as in effect prior to the effective date of this code, continues to apply to trusts created before the effective date of this code.

History.--s. 4, ch. 2006-217.

736.0404  Trust purposes.--A trust may be created only to the extent the purposes of the trust are lawful, not contrary to public policy, and possible to achieve. A trust and its terms must be for the benefit of its beneficiaries.

History.--s. 4, ch. 2006-217.

736.0405  Charitable purposes; enforcement.--

(1)  A trust may be created for charitable purposes. Charitable purposes include, but are not limited to, the relief of poverty; the advancement of arts, sciences, education, or religion; and the promotion of health, governmental, or municipal purposes.

(2)  If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor's intent to the extent such intent can be ascertained.

(3)  The settlor of a charitable trust, among others, has standing to enforce the trust.

History.--s. 4, ch. 2006-217.

736.0406  Effect of fraud, duress, mistake, or undue influence.--A trust is void if the creation of the trust is procured by fraud, duress, mistake, or undue influence. Any part of the trust is void if procured by such means, but the remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons.

History.--s. 4, ch. 2006-217.

736.0407  Evidence of oral trust.--Except as required by s. 736.0403 or a law other than this code, a trust need not be evidenced by a trust instrument but the creation of an oral trust and its terms may be established only by clear and convincing evidence.

History.--s. 4, ch. 2006-217.

736.0408  Trust for care of an animal.--

(1)  A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates on the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, on the death of the last surviving animal.

(2)  A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

(3)  Property of a trust authorized by this section may be applied only to the intended use of the property, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise as part of the settlor's estate.

History.--s. 4, ch. 2006-217.

736.0409  Noncharitable trust without ascertainable beneficiary.--Except as otherwise provided in s. 736.0408 or by another provision of law, the following rules apply:

(1)  A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than 21 years.

(2)  A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by the court.

(3)  Property of a trust authorized by this section may be applied only to the intended use of the property, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise as part of the settlor's estate.

History.--s. 4, ch. 2006-217.

736.0410  Modification or termination of trust; proceedings for disapproval of nonjudicial acts.--

(1)  In addition to the methods of termination prescribed by ss. 736.04113-736.0414, a trust terminates to the extent the trust expires or is revoked or is properly distributed pursuant to the terms of the trust.

(2)  A proceeding to disapprove a proposed modification or termination under s. 736.0412 or a trust combination or division under s. 736.0417 may be commenced by any beneficiary.

(3)  A proceeding to disapprove a proposed termination under s. 736.0414(1) may be commenced by any qualified beneficiary.

History.--s. 4, ch. 2006-217.

736.04113  Judicial modification of irrevocable trust when modification is not inconsistent with settlor's purpose.--

(1)  Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if:

(a)  The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;

(b)  Because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust; or

(c)  A material purpose of the trust no longer exists.

(2)  In modifying a trust under this section, a court may:

(a)  Amend or change the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust;

(b)  Terminate the trust in whole or in part;

(c)  Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust; or

(d)  Prohibit the trustee from performing acts that are permitted or required by the terms of the trust.

(3)  In exercising discretion to modify a trust under this section:

(a)  The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.

(b)  The court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions.

(4)  The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.

History.--s. 4, ch. 2006-217.

736.04115  Judicial modification of irrevocable trust when modification is in best interests of beneficiaries.--

(1)  Without regard to the reasons for modification provided in s. 736.04113, if compliance with the terms of a trust is not in the best interests of the beneficiaries, upon the application of a trustee or any qualified beneficiary, a court may at any time modify a trust that is not then revocable as provided in s. 736.04113(2).

(2)  In exercising discretion to modify a trust under this section:

(a)  The court shall exercise discretion in a manner that conforms to the extent possible with the intent of the settlor, taking into account the current circumstances and best interests of the beneficiaries.

(b)  The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.

(c)  The court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions.

(3)  This section shall not apply to:

(a)  Any trust created prior to January 1, 2001.

(b)  Any trust created after December 31, 2000, if:

1.  Under the terms of the trust, all beneficial interests in the trust must vest or terminate within the period prescribed by the rule against perpetuities in s. 689.225(2), notwithstanding s. 689.225(2)(f).

2.  The terms of the trust expressly prohibit judicial modification.

(4)  For purposes of subsection (3), a revocable trust shall be treated as created when the right of revocation terminates.

(5)  The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.

History.--s. 4, ch. 2006-217.

736.04117  Trustee's power to invade principal in trust.--

(1)(a)  Unless the trust instrument expressly provides otherwise, a trustee who has absolute power under the terms of a trust to invade the principal of the trust, referred to in this section as the "first trust," to make distributions to or for the benefit of one or more persons may instead exercise the power by appointing all or part of the principal of the trust subject to the power in favor of a trustee of another trust, referred to in this section as the "second trust," for the current benefit of one or more of such persons under the same trust instrument or under a different trust instrument; provided:

1.  The beneficiaries of the second trust may include only beneficiaries of the first trust;

2.  The second trust may not reduce any fixed income, annuity, or unitrust interest in the assets of the first trust; and

3.  If any contribution to the first trust qualified for a marital or charitable deduction for federal income, gift, or estate tax purposes under the Internal Revenue Code of 1986, as amended, the second trust shall not contain any provision which, if included in the first trust, would have prevented the first trust from qualifying for such a deduction or would have reduced the amount of such deduction.

(b)  For purposes of this subsection, an absolute power to invade principal shall include a power to invade principal that is not limited to specific or ascertainable purposes, such as health, education, maintenance, and support, whether or not the term "absolute" is used. A power to invade principal for purposes such as best interests, welfare, comfort, or happiness shall constitute an absolute power not limited to specific or ascertainable purposes.

(2)  The exercise of a power to invade principal under subsection (1) shall be by an instrument in writing, signed and acknowledged by the trustee, and filed with the records of the first trust.

(3)  The exercise of a power to invade principal under subsection (1) shall be considered the exercise of a power of appointment, other than a power to appoint to the trustee, the trustee's creditors, the trustee's estate, or the creditors of the trustee's estate, and shall be subject to the provisions of s. 689.225 covering the time at which the permissible period of the rule against perpetuities begins and the law that determines the permissible period of the rule against perpetuities of the first trust.

(4)  The trustee shall notify all qualified beneficiaries of the first trust, in writing, at least 60 days prior to the effective date of the trustee's exercise of the trustee's power to invade principal pursuant to subsection (1), of the manner in which the trustee intends to exercise the power. A copy of the proposed instrument exercising the power shall satisfy the trustee's notice obligation under this subsection. If all qualified beneficiaries waive the notice period by signed written instrument delivered to the trustee, the trustee's power to invade principal shall be exercisable immediately. The trustee's notice under this subsection shall not limit the right of any beneficiary to object to the exercise of the trustee's power to invade principal except as provided in other applicable provisions of this code.

(5)  The exercise of the power to invade principal under subsection (1) is not prohibited by a spendthrift clause or by a provision in the trust instrument that prohibits amendment or revocation of the trust.

(6)  Nothing in this section is intended to create or imply a duty to exercise a power to invade principal, and no inference of impropriety shall be made as a result of a trustee not exercising the power to invade principal conferred under subsection (1).

(7)  The provisions of this section shall not be construed to abridge the right of any trustee who has a power of invasion to appoint property in further trust that arises under the terms of the first trust or under any other section of this code or under another provision of law or under common law.

History.--s. 2, ch. 2007-153.

736.0412  Nonjudicial modification of irrevocable trust.--

(1)  After the settlor's death, a trust may be modified at any time as provided in s. 736.04113(2) upon the unanimous agreement of the trustee and all qualified beneficiaries.

(2)  Modification of a trust as authorized in this section is not prohibited by a spendthrift clause or by a provision in the trust instrument that prohibits amendment or revocation of the trust.

(3)  An agreement to modify a trust under this section is binding on a beneficiary whose interest is represented by another person under part III of this code.

(4)  This section shall not apply to:

(a)  Any trust created prior to January 1, 2001.

(b)  Any trust created after December 31, 2000, if, under the terms of the trust, all beneficial interests in the trust must vest or terminate within the period prescribed by the rule against perpetuities in s. 689.225(2), notwithstanding s. 689.225(2)(f), unless the terms of the trust expressly authorize nonjudicial modification.

(c)  Any trust for which a charitable deduction is allowed or allowable under the Internal Revenue Code until the termination of all charitable interests in the trust.

(5)  For purposes of subsection (4), a revocable trust shall be treated as created when the right of revocation terminates.

(6)  The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.

History.--s. 4, ch. 2006-217.

736.0413  Cy pres.--

(1)  If a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful, the court may apply the doctrine of cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner consistent with the settlor's charitable purposes.

(2)  A proceeding to modify or terminate a trust under this section may be commenced by a settlor, a trustee, or any qualified beneficiary.

History.--s. 4, ch. 2006-217.

736.0414  Modification or termination of uneconomic trust.--

(1)  After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property having a total value less than $50,000 may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration.

(2)  Upon application of a trustee or any qualified beneficiary, the court may modify or terminate a trust or remove the trustee and appoint a different trustee if the court determines that the value of the trust property is insufficient to justify the cost of administration.

(3)  Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust. The trustee may enter into agreements or make such other provisions that the trustee deems necessary or appropriate to protect the interests of the beneficiaries and the trustee and to carry out the intent and purposes of the trust.

(4)  The existence of a spendthrift provision in the trust does not make this section inapplicable unless the trust instrument expressly provides that the trustee may not terminate the trust pursuant to this section.

(5)  This section does not apply to an easement for conservation or preservation.

History.--s. 4, ch. 2006-217.

736.0415  Reformation to correct mistakes.--Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor's original intent, the court may consider evidence relevant to the settlor's intent even though the evidence contradicts an apparent plain meaning of the trust instrument.

History.--s. 4, ch. 2006-217.

736.0416  Modification to achieve settlor's tax objectives.--Upon application of any interested person, to achieve the settlor's tax objectives the court may modify the terms of a trust in a manner that is not contrary to the settlor's probable intent. The court may provide that the modification has retroactive effect.

History.--s. 4, ch. 2006-217.

736.0417  Combination and division of trusts.--

(1)  After notice to the qualified beneficiaries, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not impair rights of any beneficiary or adversely affect achievement of the purposes of the trusts or trust, respectively.

(2)  Subject to the terms of the trust, the trustee may take into consideration differences in federal tax attributes and other pertinent factors in administering the trust property of any separate account or trust, in making applicable tax elections, and in making distributions. A separate trust created by severance must be treated as a separate trust for all purposes from the date on which the severance is effective. The effective date of the severance may be retroactive to a date before the date on which the trustee exercises such power.

History.--s. 4, ch. 2006-217.

736.0501  Rights of beneficiary's creditor or assignee.

736.0502  Spendthrift provision.

736.0503  Exceptions to spendthrift provision.

736.0504  Discretionary trusts; effect of standard.

736.0505  Creditors' claims against settlor.

736.05053  Trustee's duty to pay expenses and obligations of settlor's estate.

736.05055  Notice of trust.

736.0506  Overdue distribution.

736.0507  Personal obligations of trustee.

736.0501  Rights of beneficiary's creditor or assignee.--Except as provided in s. 736.0504, to the extent a beneficiary's interest is not subject to a spendthrift provision, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary or by other means. The court may limit the award to such relief as is appropriate under the circumstances.

History.--s. 5, ch. 2006-217; s. 11, ch. 2007-153.

736.0502  Spendthrift provision.--

(1)  A spendthrift provision is valid only if the provision restrains both voluntary and involuntary transfer of a beneficiary's interest. This subsection does not apply to any trust the terms of which are included in an instrument executed before the effective date of this code.

(2)  A term of a trust providing that the interest of a beneficiary is held subject to a spendthrift trust, or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest.

(3)  A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in this part, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before receipt of the interest or distribution by the beneficiary.

(4)  A valid spendthrift provision does not prevent the appointment of interests through the exercise of a power of appointment.

History.--s. 5, ch. 2006-217; s. 12, ch. 2007-153.

736.0503  Exceptions to spendthrift provision.--

(1)  As used in this section, the term "child" includes any person for whom an order or judgment for child support has been entered in this or any other state.

(2)  To the extent provided in subsection (3), a spendthrift provision is unenforceable against:

(a)  A beneficiary's child, spouse, or former spouse who has a judgment or court order against the beneficiary for support or maintenance.

(b)  A judgment creditor who has provided services for the protection of a beneficiary's interest in the trust.

(c)  A claim of this state or the United States to the extent a law of this state or a federal law so provides.

(3)  Except as otherwise provided in this subsection and in s. 736.0504, a claimant against which a spendthrift provision may not be enforced may obtain from a court, or pursuant to the Uniform Interstate Family Support Act, an order attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the award to such relief as is appropriate under the circumstances. Notwithstanding this subsection, the remedies provided in this subsection apply to a claim by a beneficiary's child, spouse, former spouse, or a judgment creditor described in paragraph (2)(a) or paragraph (2)(b) only as a last resort upon an initial showing that traditional methods of enforcing the claim are insufficient.

History.--s. 5, ch. 2006-217; s. 13, ch. 2007-153.

736.0504  Discretionary trusts; effect of standard.--

(1)  As used in this section, the term "discretionary distribution" means a distribution that is subject to the trustee's discretion whether or not the discretion is expressed in the form of a standard of distribution and whether or not the trustee has abused the discretion.

(2)  Whether or not a trust contains a spendthrift provision, if a trustee may make discretionary distributions to or for the benefit of a beneficiary, a creditor of the beneficiary, including a creditor as described in s. 736.0503(2), may not:

(a)  Compel a distribution that is subject to the trustee's discretion; or

(b)  Attach or otherwise reach the interest, if any, which the beneficiary might have as a result of the trustee's authority to make discretionary distributions to or for the benefit of the beneficiary.

(3)  If the trustee's discretion to make distributions for the trustee's own benefit is limited by an ascertainable standard, a creditor may not reach or compel distribution of the beneficial interest except to the extent the interest would be subject to the creditor's claim were the beneficiary not acting as trustee.

(4)  This section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution.

History.--s. 5, ch. 2006-217; s. 14, ch. 2007-153.

736.0505  Creditors' claims against settlor.--

(1)  Whether or not the terms of a trust contain a spendthrift provision, the following rules apply:

(a)  The property of a revocable trust is subject to the claims of the settlor's creditors during the settlor's lifetime to the extent the property would not otherwise be exempt by law if owned directly by the settlor.

(b)  With respect to an irrevocable trust, a creditor or assignee of the settlor may reach the maximum amount that can be distributed to or for the settlor's benefit. If a trust has more than one settlor, the amount the creditor or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution.

(c)  Notwithstanding the provisions of paragraph (b), the assets of an irrevocable trust may not be subject to the claims of an existing or subsequent creditor or assignee of the settlor, in whole or in part, solely because of the existence of a discretionary power granted to the trustee by the terms of the trust, or any other provision of law, to pay directly to the taxing authorities or to reimburse the settlor for any tax on trust income or principal which is payable by the settlor under the law imposing such tax.

(2)  For purposes of this section:

(a)  During the period the power may be exercised, the holder of a power of withdrawal is treated in the same manner as the settlor of a revocable trust to the extent of the property subject to the power.

(b)  Upon the lapse, release, or waiver of the power, the holder is treated as the settlor of the trust only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greater of the amount specified in:

1.  Section 2041(b)(2) or s. 2514(e); or

2.  Section 2503(b),

of the Internal Revenue Code of 1986, as amended.

History.--s. 5, ch. 2006-217.

736.05053  Trustee's duty to pay expenses and obligations of settlor's estate.--

(1)  A trustee of a trust described in s. 733.707(3) shall pay to the personal representative of a settlor's estate any amounts that the personal representative certifies in writing to the trustee are required to pay the expenses of the administration and obligations of the settlor's estate. Payments made by a trustee, unless otherwise provided in the trust instrument, must be charged as expenses of the trust without a contribution from anyone. The interests of all beneficiaries of such a trust are subject to the provisions of this subsection; however, the payments must be made from assets, property, or the proceeds of the assets or property, other than assets proscribed in s. 733.707(3), that are included in the settlor's gross estate for federal estate tax purposes.

(2)  Unless a settlor provides by will, or designates in a trust described in s. 733.707(3) funds or property passing under the trust to be used as designated, the expenses of the administration and obligations of the settlor's estate must be paid from the trust in the following order:

(a)  Property of the residue of the trust remaining after all distributions that are to be satisfied by reference to a specific property or type of property, fund, or sum.

(b)  Property that is not to be distributed from specified or identified property or a specified or identified item of property.

(c)  Property that is to be distributed from specified or identified property or a specified or identified item of property.

(3)  Trust distributions that are to be satisfied from specified or identified property must be classed as distributions to be satisfied from the general assets of the trust and not otherwise disposed of in the trust instrument on the failure or insufficiency of funds or property from which payment should be made, to the extent of the insufficiency. Trust distributions given for valuable consideration abate with other distributions of the same class only to the extent of the excess over the value of the consideration until all others of the same class are exhausted. Except as provided in this section, trust distributions abate equally and ratably and without preference or priority between real and personal property. When a specified or identified item of property that has been designated for distribution in the trust instrument or that is charged with a distribution is sold or taken by the trustee, other beneficiaries shall contribute according to their respective interests to the beneficiary whose property has been sold or taken. Before distribution, the trustee shall determine the amounts of the respective contributions and such amounts must be paid or withheld before distribution is made.

(4)  The trustee shall pay the expenses of trust administration, including compensation of trustees and attorneys of the trustees, before and in preference to the expenses of the administration and obligations of the settlor's estate.

History.--s. 5, ch. 2006-217.

736.05055  Notice of trust.--

(1)  Upon the death of a settlor of a trust described in s. 733.707(3), the trustee must file a notice of trust with the court of the county of the settlor's domicile and the court having jurisdiction of the settlor's estate.

(2)  The notice of trust must contain the name of the settlor, the settlor's date of death, the title of the trust, if any, the date of the trust, and the name and address of the trustee.

(3)  If the settlor's probate proceeding has been commenced, the clerk shall notify the trustee in writing of the date of the commencement of the probate proceeding and the file number.

(4)  The clerk shall file and index the notice of trust in the same manner as a caveat unless there exists a probate proceeding for the settlor's estate, in which case the notice of trust must be filed in the probate proceeding and the clerk shall send a copy to the personal representative.

(5)  The clerk shall send a copy of any caveat filed regarding the settlor to the trustee, and the notice of trust to any caveator, unless there is a probate proceeding pending and the personal representative and the trustee are the same.

(6)  Any proceeding affecting the expenses of the administration or obligations of the settlor's estate prior to the trustee filing a notice of trust are binding on the trustee.

(7)  The trustee's failure to file the notice of trust does not affect the trustee's obligation to pay expenses of administration and obligations of the settlor's estate as provided in s. 733.607(2).

History.--s. 5, ch. 2006-217.

736.0506  Overdue distribution.--

(1)  As used in this section, the term "mandatory distribution" means a distribution of income or principal the trustee is required to make to a beneficiary under the terms of the trust, including a distribution on termination of the trust. The term does not include a distribution subject to the exercise of the trustee's discretion, even if:

(a)  The discretion is expressed in the form of a standard of distribution; or

(b)  The terms of the trust authorizing a distribution couple language of discretion with language of direction.

(2)  A creditor or assignee of a beneficiary may reach a mandatory distribution of income or principal, including a distribution upon termination of the trust, if the trustee has not made the distribution to the beneficiary within a reasonable time after the designated distribution date, whether or not a trust contains a spendthrift provision.

History.--s. 5, ch. 2006-217.

736.0507  Personal obligations of trustee.--Except to the extent of the trustee's interest in the trust other than as a trustee, trust property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.

History.--s. 5, ch. 2006-217.

736.0601  Capacity of settlor of revocable trust.

736.0602  Revocation or amendment of revocable trust.

736.0603  Settlor's powers; powers of withdrawal.

736.0604  Limitation on action contesting validity of revocable trust.

736.0601  Capacity of settlor of revocable trust.--The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.

History.--s. 6, ch. 2006-217.

736.0602  Revocation or amendment of revocable trust.--

(1)  Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before the effective date of this code.

(2)  If a revocable trust is created or funded by more than one settlor:

(a)  To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses.

(b)  To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution.

(c)  Upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.

(3)  Subject to s. 736.0403(2), the settlor may revoke or amend a revocable trust:

(a)  By substantial compliance with a method provided in the terms of the trust; or

(b)  If the terms of the trust do not provide a method, by:

1.  A later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or

2.  Any other method manifesting clear and convincing evidence of the settlor's intent.

(4)  Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.

(5)  A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only as authorized by s. 709.08.

(6)  A guardian of the property of the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property only as provided in s. 744.441.

(7)  A trustee who does not know that a trust has been revoked or amended is not liable for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.

History.--s. 6, ch. 2006-217.

736.0603  Settlor's powers; powers of withdrawal.--

(1)  While a trust is revocable, the duties of the trustee are owed exclusively to the settlor.

(2)  During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power.

History.--s. 6, ch. 2006-217.

736.0604  Limitation on action contesting validity of revocable trust.--An action to contest the validity of a trust that was revocable at the settlor's death is barred, if not commenced within the earlier of:

(1)  The time as provided in chapter 95; or

(2)  Six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding.

History.--s. 6, ch. 2006-217.

736.0701  Accepting or declining trusteeship.

736.0702  Trustee's bond.

736.0703  Cotrustees.

736.0704  Vacancy in trusteeship; appointment of successor.

736.0705  Resignation of trustee.

736.0706  Removal of trustee.

736.0707  Delivery of property by former trustee.

736.0708  Compensation of trustee.

736.0709  Reimbursement of expenses.

736.0701  Accepting or declining trusteeship.--

(1)  Except as otherwise provided in subsection (3), a person designated as trustee accepts the trusteeship:

(a)  By substantially complying with a method of acceptance provided in the terms of the trust; or

(b)  If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.

(2)  A person designated as trustee who has not accepted the trusteeship may decline the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have declined the trusteeship.

(3)  A person designated as trustee may, without accepting the trusteeship:

(a)  Act to preserve the trust property if, within a reasonable time after acting, the person sends to a qualified beneficiary a written statement declining the trusteeship.

(b)  Inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose.

History.--s. 7, ch. 2006-217.

736.0702  Trustee's bond.--

(1)  A trustee shall give bond to secure performance of the trustee's duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.

(2)  The court may specify the amount of a bond, the trustee's liabilities under the bond, and whether sureties are necessary. The court may modify or terminate a bond at any time.

History.--s. 7, ch. 2006-217.

736.0703  Cotrustees.--

(1)  Cotrustees who are unable to reach a unanimous decision may act by majority decision.

(2)  If a vacancy occurs in a cotrusteeship, the remaining cotrustees or a majority of the remaining cotrustees may act for the trust.

(3)  A cotrustee must participate in the performance of a trustee's function unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification under other provision of law, or other temporary incapacity or the cotrustee has properly delegated the performance of the function to another cotrustee.

(4)  If a cotrustee is unavailable to perform duties because of absence, illness, disqualification under other law, or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust.

(5)  A cotrustee may not delegate to another cotrustee the performance of a function the settlor reasonably expected the cotrustees to perform jointly. A cotrustee may revoke a delegation previously made.

(6)  Except as otherwise provided in subsection (7), a cotrustee who does not join in an action of another cotrustee is not liable for the action.

(7)  Except as otherwise provided in subsection (9), each cotrustee shall exercise reasonable care to:

(a)  Prevent a cotrustee from committing a breach of trust.

(b)  Compel a cotrustee to redress a breach of trust.

(8)  A dissenting cotrustee who joins in an action at the direction of the majority of the cotrustees and who notifies any cotrustee of the dissent at or before the time of the action is not liable for the action.

(9)  If the terms of a trust instrument provide for the appointment of more than one trustee but confer upon one or more of the trustees, to the exclusion of the others, the power to direct or prevent specified actions of the trustees, the excluded trustees shall act in accordance with the exercise of the power. Except in cases of willful misconduct on the part of the directed trustee of which the excluded trustee has actual knowledge, an excluded trustee is not liable, individually or as a fiduciary, for any consequence that results from compliance with the exercise of the power, regardless of the information available to the excluded trustees. The excluded trustees are relieved of any obligation to review, inquire, investigate, or make recommendations or evaluations with respect to the exercise of the power. The trustee or trustees having the power to direct or prevent actions of the trustees shall be liable to the beneficiaries with respect to the exercise of the power as if the excluded trustees were not in office and shall have the exclusive obligation to account to and to defend any action brought by the beneficiaries with respect to the exercise of the power.

History.--s. 7, ch. 2006-217; s. 1, ch. 2008-76.

736.0704  Vacancy in trusteeship; appointment of successor.--

(1)  A vacancy in a trusteeship occurs if:

(a)  A person designated as trustee declines the trusteeship;

(b)  A person designated as trustee cannot be identified or does not exist;

(c)  A trustee resigns;

(d)  A trustee is disqualified or removed;

(e)  A trustee dies; or

(f)  A trustee is adjudicated to be incapacitated.

(2)  If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee.

(3)  A vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority:

(a)  By a person named or designated pursuant to the terms of the trust to act as successor trustee.

(b)  By a person appointed by unanimous agreement of the qualified beneficiaries.

(c)  By a person appointed by the court.

(4)  A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority:

(a)  By a person named or designated pursuant to the terms of the trust to act as successor trustee.

(b)  By a person selected by unanimous agreement of the charitable organizations expressly designated to receive distributions under the terms of the trust.

(c)  By a person appointed by the court.

(5)  The court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust, whether or not a vacancy in a trusteeship exists or is required to be filled.

History.--s. 7, ch. 2006-217.

736.0705  Resignation of trustee.--

(1)  A trustee may resign:

(a)  Upon at least 30 days' notice to the qualified beneficiaries, the settlor, if living, and all cotrustees; or

(b)  With the approval of the court.

(2)  In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.

(3)  Any liability of a resigning trustee or of any sureties on the trustee's bond for acts or omissions of the trustee is not discharged or affected by the trustee's resignation.

History.--s. 7, ch. 2006-217.

736.0706  Removal of trustee.--

(1)  The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on the court's own initiative.

(2)  The court may remove a trustee if:

(a)  The trustee has committed a serious breach of trust;

(b)  The lack of cooperation among cotrustees substantially impairs the administration of the trust;

(c)  Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or

(d)  There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

(3)  Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under s. 736.1001(2) as may be necessary to protect the trust property or the interests of the beneficiaries.

History.--s. 7, ch. 2006-217.

736.0707  Delivery of property by former trustee.--

(1)  Unless a cotrustee remains in office or the court otherwise orders and until the trust property is delivered to a successor trustee or other person entitled to the property, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.

(2)  A trustee who has resigned or been removed shall within a reasonable time deliver the trust property within the trustee's possession to the cotrustee, successor trustee, or other person entitled to the property, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes. The provisions of this subsection are in addition to and are not in derogation of the rights of a removed or resigning trustee under the common law.

History.--s. 7, ch. 2006-217.

736.0708  Compensation of trustee.--

(1)  If the terms of a trust do not specify the trustee's compensation, a trustee is entitled to compensation that is reasonable under the circumstances.

(2)  If the terms of a trust specify the trustee's compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if:

(a)  The duties of the trustee are substantially different from those contemplated when the trust was created; or

(b)  The compensation specified by the terms of the trust would be unreasonably low or high.

(3)  If the trustee has rendered other services in connection with the administration of the trust, the trustee shall also be allowed reasonable compensation for the other services rendered in addition to reasonable compensation as trustee.

History.--s. 7, ch. 2006-217.

736.0709  Reimbursement of expenses.--

(1)  A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for reasonable expenses that were properly incurred in the administration of the trust.

(2)  An advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.

History.--s. 7, ch. 2006-217.

736.0801  Duty to administer trust.

736.0802  Duty of loyalty.

736.0803  Impartiality.

736.0804  Prudent administration.

736.0805  Expenses of administration.

736.0806  Trustee's skills.

736.0807  Delegation by trustee.

736.0808  Powers to direct.

736.0809  Control and protection of trust property.

736.0810  Recordkeeping and identification of trust property.

736.08105  Duty to ascertain marketable title of trust real property.

736.0811  Enforcement and defense of claims.

736.0812  Collecting trust property.

736.08125  Protection of successor trustees.

736.0813  Duty to inform and account.

736.08135  Trust accountings.

736.0814  Discretionary powers; tax savings.

736.08147  Duty to distribute trust income.