Bill Text: FL S0206 | 2017 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Wills and Trusts
Spectrum: Bipartisan Bill
Status: (Vetoed) 2017-04-28 - Laid on Table, companion bill(s) passed, see CS/HB 1379 (Ch. 2017-155) [S0206 Detail]
Download: Florida-2017-S0206-Comm_Sub.html
Bill Title: Wills and Trusts
Spectrum: Bipartisan Bill
Status: (Vetoed) 2017-04-28 - Laid on Table, companion bill(s) passed, see CS/HB 1379 (Ch. 2017-155) [S0206 Detail]
Download: Florida-2017-S0206-Comm_Sub.html
Florida Senate - 2017 CS for CS for CS for SB 206 By the Committees on Rules; Banking and Insurance; and Judiciary; and Senators Passidomo and Brandes 595-04430-17 2017206c3 1 A bill to be entitled 2 An act relating to wills and trusts; amending s. 3 731.201, F.S.; revising the definition of the term 4 “will” to include electronic wills; amending s. 5 732.506, F.S.; excluding electronic wills from 6 specified methods to revoke a will; creating s. 7 732.521, F.S.; providing a short title; creating s. 8 732.522, F.S.; defining terms; creating s. 732.523, 9 F.S.; specifying requirements that must be satisfied 10 in the execution of electronic wills; creating s. 11 732.524, F.S.; providing requirements for self-proof 12 of electronic wills; creating s. 732.525, F.S.; 13 specifying the circumstances under which a person is 14 deemed to be in the presence of or appearing before 15 another person; providing that an electronic record 16 satisfies the requirement that a record be in writing; 17 providing that an electronic signature satisfies the 18 requirement that a document be signed; providing 19 requirements for certain documents to be deemed 20 executed in this state; creating s. 732.526, F.S.; 21 authorizing an electronic will of a nonresident of 22 this state which is properly executed in this or 23 another state to be offered for and admitted to 24 probate in this state; providing the venue for the 25 probate of such electronic will; creating s. 732.527, 26 F.S.; specifying requirements for service as a 27 qualified custodian; requiring qualified custodians to 28 provide access to or information concerning the 29 electronic will, or the electronic record containing 30 the electronic will, only to specified persons or as 31 directed by a court; authorizing a qualified custodian 32 to destroy the electronic record of an electronic will 33 after a certain date; providing conditions under which 34 a qualified custodian may cease serving as a qualified 35 custodian; requiring a qualified custodian to cease 36 serving in such capacity upon the written request of 37 the testator; requiring that a successor qualified 38 custodian agree in writing to serve in that capacity 39 for an electronic will before succeeding to office; 40 specifying what constitutes an affidavit of a 41 qualified custodian; requiring a qualified custodian 42 to deliver certain documents upon request from the 43 testator; prohibiting a qualified custodian from 44 charging the testator a fee for such documents under 45 certain circumstances; providing that a qualified 46 custodian is liable for certain damages under certain 47 circumstances; prohibiting a qualified custodian from 48 terminating or suspending access to, or downloads of, 49 an electronic will by the testator; requiring a 50 qualified custodian to deposit an electronic will with 51 the court upon receiving information that the testator 52 is dead; prohibiting a qualified custodian from 53 charging a fee for certain actions taken upon the 54 death of the testator; requiring a qualified custodian 55 to keep certain information confidential; amending s. 56 733.201, F.S.; providing for the proof of electronic 57 wills; providing requirements for admitting an 58 electronic will that is not self-proved into probate; 59 providing that a paper copy of an electronic will 60 constitutes an “original” of the electronic will 61 subject to certain conditions; amending s. 736.0103, 62 F.S.; redefining the term “interests of the 63 beneficiaries”; amending s. 736.0105, F.S.; deleting a 64 requirement that a trust be for the benefit of the 65 trust’s beneficiaries; amending s. 736.0109, F.S.; 66 revising provisions relating to notice or sending of 67 electronic trust documents; providing requirements for 68 such documents to be deemed sent; requiring a certain 69 authorization to specify documents subject to 70 electronic posting; revising requirements for a 71 recipient to electronically access such documents; 72 prohibiting the termination of a recipient’s 73 electronic access to such documents from invalidating 74 certain notice or sending of electronic trust 75 documents; tolling specified limitations periods under 76 certain circumstances; providing requirements for 77 electronic access to such documents to be deemed 78 terminated by a sender; providing applicability; 79 amending s. 736.0110, F.S.; providing that the 80 Attorney General has standing to assert certain rights 81 in certain proceedings; amending s. 736.0403, F.S.; 82 providing that, for purposes of establishing the 83 validity of the testamentary aspects of a revocable 84 trust, the qualified custodian of the trust instrument 85 may not also be a trustee of the trust; amending s. 86 736.0404, F.S.; deleting a restriction on the purpose 87 for which a trust is created; amending s. 736.04117, 88 F.S.; defining and redefining terms; authorizing an 89 authorized trustee to appoint all or part of the 90 principal of a trust to a second trust under certain 91 circumstances; providing requirements for the second 92 trust and its beneficiaries; providing that the second 93 trust may retain, omit, or create specified powers; 94 authorizing the term of the second trust to extend 95 beyond the term of the first trust; providing 96 requirements for distributions to a second trust when 97 the authorized trustee does not have absolute power; 98 providing requirements for such second trust; 99 providing requirements for grants of power by the 100 second trust; authorizing a second trust created by an 101 authorized trustee without absolute power to grant 102 absolute power to the second trust’s trustee; 103 authorizing an authorized trustee to appoint the 104 principal of a first trust to a supplemental needs 105 trust under certain circumstances; providing 106 requirements for such supplemental needs trust; 107 prohibiting an authorized trustee from distributing 108 the principal of a trust in a manner that would reduce 109 specified tax benefits; prohibiting the distribution 110 of S corporation stock from a first trust to a second 111 trust under certain circumstances; prohibiting a 112 settlor from being treated as the owner of a second 113 trust if he or she was not treated as the owner of the 114 first trust; prohibiting an authorized trustee from 115 distributing a trust’s interest in property to a 116 second trust if it is subject to specified rules of 117 the Internal Revenue Code; prohibiting the exercise of 118 power to invade a trust’s principal to increase an 119 authorized trustee’s compensation or relieve him or 120 her from certain liability; specifying who an 121 authorized trustee must notify when he or she 122 exercises his or her power to invade the trust’s 123 principal; specifying the documents that the 124 authorized trustee must provide with such notice; 125 amending s. 736.0708, F.S.; providing that a cotrustee 126 is entitled to reasonable compensation when the trust 127 does not specify compensation; providing that 128 reasonable compensation may be greater for multiple 129 trustees than for a single trustee; amending s. 130 736.08135, F.S.; revising applicability; amending s. 131 736.1008, F.S.; clarifying that certain knowledge by a 132 beneficiary does not cause a claim to accrue for 133 breach of trust or commence the running of a period of 134 limitations or laches; providing legislative intent; 135 providing for retroactive application; amending s. 136 736.1201, F.S.; defining the term “delivery of 137 notice”; conforming a provision to changes made by the 138 act; amending s. 736.1205, F.S.; requiring an 139 authorized trustee to provide certain notice to the 140 Attorney General rather than the state attorney; 141 providing applicability; amending ss. 736.1206, 142 736.1207, 736.1208, and 736.1209, F.S.; conforming 143 provisions to changes made by the act; providing 144 effective dates. 145 146 Be It Enacted by the Legislature of the State of Florida: 147 148 Section 1. Subsection (40) of section 731.201, Florida 149 Statutes, is amended to read: 150 731.201 General definitions.—Subject to additional 151 definitions in subsequent chapters that are applicable to 152 specific chapters or parts, and unless the context otherwise 153 requires, in this code, in s. 409.9101, and in chapters 736, 154 738, 739, and 744, the term: 155 (40) “Will” means an instrument, including a codicil, 156 executed by a person in the manner prescribed by this code, 157 which disposes of the person’s property on or after his or her 158 death and includes an instrument which merely appoints a 159 personal representative or revokes or revises another will. The 160 term “will” includes an electronic will as defined in s. 161 732.522. 162 Section 2. Section 732.506, Florida Statutes, is amended to 163 read: 164 732.506 Revocation by act.—A will or codicil, other than an 165 electronic will, is revoked by the testator, or some other 166 person in the testator’s presence and at the testator’s 167 direction, by burning, tearing, canceling, defacing, 168 obliterating, or destroying it with the intent, and for the 169 purpose, of revocation. 170 Section 3. Section 732.521, Florida Statutes, is created to 171 read: 172 732.521 Short title.—Sections 732.521-732.527 may be cited 173 as the “Florida Electronic Wills Act.” 174 Section 4. Section 732.522, Florida Statutes, is created to 175 read: 176 732.522 Definitions.—As used in ss. 732.521-732.527, the 177 term: 178 (1) “Electronic record” means a record created, generated, 179 sent, communicated, received, or stored by electronic means. 180 (2) “Electronic signature” means an electronic mark visibly 181 manifested in a record as a signature and executed or adopted by 182 a person with the intent to sign the record. 183 (3) “Electronic will” means a will, including a codicil, 184 executed in accordance with s. 732.523 by a person in the manner 185 prescribed by this act, which disposes of the person’s property 186 on or after his or her death and includes an instrument that 187 appoints a personal representative or revokes or revises another 188 will or electronic will. 189 (4) “Qualified custodian” means a person who meets the 190 requirements of s. 732.527(1). 191 Section 5. Section 732.523, Florida Statutes, is created to 192 read: 193 732.523 Electronic wills.—Notwithstanding s. 732.502: 194 (1) An electronic will must meet all of the following 195 requirements: 196 (a) Exist in an electronic record that is unique and 197 identifiable. 198 (b) Be electronically signed by the testator in the 199 presence of at least two attesting witnesses. 200 (c) Be electronically signed by the attesting witnesses in 201 the presence of the testator and in the presence of each other. 202 (2) Except as otherwise provided in this act, all questions 203 as to the force, effect, validity, and interpretation of an 204 electronic will that complies with this section must be 205 determined in the same manner as in the case of a will executed 206 in accordance with s. 732.502. 207 Section 6. Section 732.524, Florida Statutes, is created to 208 read: 209 732.524 Self-proof of electronic will.—An electronic will 210 is self-proved if all of the following requirements are met: 211 (1) The electronic will is executed in conformity with this 212 act. 213 (2) The acknowledgment of the electronic will by the 214 testator and the affidavits of the witnesses are made in 215 accordance with s. 732.503 and are part of the electronic record 216 containing the electronic will, or are attached to, or are 217 logically associated with, the electronic will. 218 (3)(a) The electronic will designates a qualified 219 custodian; 220 (b) The electronic record that contains the electronic will 221 is held in the custody of a qualified custodian at all times 222 before being offered to the court for probate; and 223 (c) The qualified custodian who has custody of the 224 electronic will at the time of the testator’s death: 225 1. Certifies under oath that, to the best knowledge of the 226 qualified custodian, the electronic record that contains the 227 electronic will was at all times before being offered to the 228 court in the custody of a qualified custodian in compliance with 229 s. 732.527 and that the electronic will has not been altered in 230 any way since the date of its execution; and 231 2. If the execution of the electronic will included the use 232 of video conference under s. 732.525(1)(b), certifies under oath 233 that the audio and video recording required under s. 234 732.525(1)(b)9. is in the qualified custodian’s custody in the 235 electronic record that contains the electronic will and is 236 available for inspection by the court. 237 Section 7. Section 732.525, Florida Statutes, is created to 238 read: 239 732.525 Method and place of execution.—For purposes of this 240 act, the execution and filing of a document with the court as 241 provided in this act or the Florida Probate Rules, the execution 242 of a living will under s. 765.302, and the acknowledgment of any 243 of the foregoing: 244 (1) An individual is deemed to be in the presence of or 245 appearing before another individual if the individuals are 246 either: 247 (a) In the same physical location; or 248 (b) In different physical locations, but can communicate 249 with each other by means of live video conference, if the 250 following requirements are met: 251 1. The testator or principal may not be in an end-stage 252 condition as defined in s. 765.101 or a vulnerable adult as 253 defined in s. 415.102. The contestant of the document has the 254 burden of proving that the testator or principal was in an end 255 stage condition or was a vulnerable adult at the time of 256 executing the document. 257 2. The signal transmission must be live and in real time. 258 3. The signal transmission must be secure from interception 259 through lawful means by anyone other than the persons 260 communicating. 261 4. The persons communicating must simultaneously see and 262 speak to one another with reasonable clarity. 263 5. In the video conference, the persons communicating must 264 establish the identity of the testator or principal by: 265 a. Personal knowledge, if the person asserting personal 266 knowledge explains how the identity of the testator or principal 267 has come to be known to, and the length of time for which it has 268 been known by, such person; or 269 b. Presentation of any of the forms of identification of 270 the testator or principal, as set forth in s. 117.05(5)(b)2.a. 271 i. 272 6. In the video conference, the persons communicating must 273 demonstrate awareness of the events taking place, which may be 274 achieved, without limitation, by stating their names and 275 identifying any document they intend to sign. 276 7. At least one of the persons communicating must be 277 either: 278 a. An attorney licensed to practice law in this state: 279 (I) Who electronically signs the document as a witness; 280 (II) Whose status as an attorney licensed to practice law 281 in this state is indicated adjacent to his or her electronic 282 signature; and 283 (III) Whose electronic signature is accompanied by his or 284 her statement that, to the best of his or her knowledge, the 285 execution of the document complied with the requirements of this 286 section; or 287 b. A Florida notary public: 288 (I) Who electronically signs the document; 289 (II) Whose electronic signature is accompanied by a notary 290 public seal that meets the requirements of s. 117.021(3); and 291 (III) Whose electronic signature and seal are accompanied 292 by his or her certification that, to the best of his or her 293 knowledge, the execution of the document complied with the 294 requirements of this section. 295 296 If a document is required to be witnessed or acknowledged, the 297 witness or notary fulfilling that requirement may be the same 298 witness or notary who fulfills the requirement of this 299 subparagraph. A person presented with a document containing the 300 statement or certification required under this subparagraph may 301 presume that the document was executed in compliance with this 302 paragraph, unless the person has notice that such compliance is 303 contested. 304 8. In the video conference, the testator or principal must 305 provide verbal answers to all of the following questions: 306 a. Are you over the age of 18? 307 b. Are you under the influence of any drugs or alcohol that 308 impairs your ability to make decisions? 309 c. Are you of sound mind? 310 d. Did anyone assist you in accessing this video 311 conference? If so, who? 312 e. Has anyone forced or influenced you to include anything 313 in this document which you do not wish to include? 314 f. Are you signing this document voluntarily? 315 9. A time-stamped recording of the entire video conference 316 must be identifiable with the document being signed and stored 317 in the electronic record containing the document by a qualified 318 custodian in the manner required pursuant to s. 732.527(1)(c) 319 for the storage of electronic records containing electronic 320 wills. 321 a. Without limitation, a recording is identifiable with a 322 document if the recording and document share an identification 323 number. 324 b. If the recording is not reasonably accessible by a 325 person presented with the document, such person may treat the 326 document as if it does not include the signature of any 327 signatory who appeared by means of live video conference; 328 however, an electronic will whose execution included the use of 329 video conference under this section may be proved as provided in 330 s. 733.201(4). Without limitation, a recording is reasonably 331 accessible if it is accessible at no charge over the Internet 332 pursuant to instructions set forth in the document. 333 (2) If a law requires a record to be in writing, an 334 electronic record satisfies such provision. 335 (3) Any requirement that a document be signed may be 336 satisfied by an electronic signature. 337 (4) A document that is signed electronically is deemed to 338 be executed in this state if all of the following requirements 339 are met: 340 (a) The document states that the person creating the 341 document intends to execute and understands that he or she is 342 executing the document in, and pursuant to the laws of, this 343 state. 344 (b) The person creating the document is, or the attesting 345 witnesses or Florida notary public whose electronic signatures 346 are obtained in the execution of the document are, physically 347 located within this state at the time the document is executed. 348 (c) In the case of a self-proved electronic will, the 349 electronic will designates a qualified custodian who is 350 domiciled in and a resident of this state or incorporated or 351 organized in this state. 352 Section 8. Section 732.526, Florida Statutes, is created to 353 read: 354 732.526 Probate.—An electronic will, other than a 355 holographic or nuncupative will, of a nonresident of this state 356 which is executed or deemed executed in another state in 357 accordance with the laws of that state or of this state may be 358 offered for and admitted to original probate in this state and 359 is subject to the jurisdiction of the courts of this state. The 360 venue for the probate of electronic wills is as provided in s. 361 733.101(1) or, in the case of the electronic will of a 362 nonresident, may be the county in which the qualified custodian 363 or attorney for the petitioner or personal representative has 364 his or her domicile or registered office. 365 Section 9. Section 732.527, Florida Statutes, is created to 366 read: 367 732.527 Qualified custodians.— 368 (1) To serve as a qualified custodian of an electronic 369 will, a person or entity must: 370 (a) Not be named as a fiduciary under the electronic will 371 or an heir or devisee, as defined in s. 731.201, of the 372 testator; 373 (b) Be domiciled in and a resident of this state or be 374 incorporated or organized in this state; 375 (c) In the course of maintaining custody of electronic 376 wills, regularly employ, and store electronic records containing 377 electronic wills in, a system that: 378 1. Protects electronic records from destruction, 379 alteration, or unauthorized access; and 380 2. Detects any change to an electronic record; and 381 (d) Furnish for any court hearing involving an electronic 382 will that is currently or was previously stored by the qualified 383 custodian any information requested by the court pertaining to 384 the qualified custodian’s qualifications, policies, and 385 practices related to the creation, sending, communication, 386 receipt, maintenance, storage, and production of electronic 387 wills. 388 (2) The qualified custodian of an electronic will shall 389 provide access to or information concerning the electronic will, 390 or the electronic record containing the electronic will, only: 391 (a) To the testator; 392 (b) To persons authorized by the testator in the electronic 393 will or in written instructions signed by the testator in 394 accordance with s. 732.502; 395 (c) After the death of the testator, to the testator’s 396 nominated personal representative; or 397 (d) At any time, as directed by a court of competent 398 jurisdiction. 399 (3) The qualified custodian of the electronic record of an 400 electronic will may elect to destroy such record, including any 401 of the documentation required to be created and stored under 402 paragraph (1)(d), at any time after the earlier of the fifth 403 anniversary of the conclusion of the administration of the 404 estate of the testator or 20 years after the death of the 405 testator. 406 (4) A qualified custodian who at any time maintains custody 407 of the electronic record of an electronic will may elect to 408 cease serving in such capacity by: 409 (a) Delivering the electronic will or the electronic record 410 containing the electronic will to the testator, if then living, 411 or, after the death of the testator, by filing the will with the 412 court in accordance with s. 732.901; and 413 (b) If the outgoing qualified custodian intends to 414 designate a successor qualified custodian, by doing the 415 following: 416 1. Providing written notice to the testator of the name, 417 address, and qualifications of the proposed successor qualified 418 custodian. The testator must provide written consent before the 419 electronic record, including the electronic will, is delivered 420 to a successor qualified custodian; 421 2. Delivering the electronic record containing the 422 electronic will to the successor qualified custodian; and 423 3. Delivering to the successor qualified custodian an 424 affidavit of the outgoing qualified custodian stating that: 425 a. The outgoing qualified custodian is eligible to act as a 426 qualified custodian in this state; 427 b. The outgoing qualified custodian is the qualified 428 custodian designated by the testator in the electronic will or 429 appointed to act in such capacity under this paragraph; 430 c. The electronic will has at all times been in the custody 431 of one or more qualified custodians in compliance with this 432 section since the time the electronic record was created, and 433 identifying such qualified custodians; and 434 d. To the best of the outgoing qualified custodian’s 435 knowledge, the electronic will has not been altered since the 436 time it was created. 437 438 For purposes of making this affidavit, the outgoing qualified 439 custodian may rely conclusively on any affidavits delivered by a 440 predecessor qualified custodian in connection with its 441 designation or appointment as qualified custodian; however, all 442 such affidavits must be delivered to the successor qualified 443 custodian. 444 (5) Upon the request of the testator which is made in a 445 writing signed in accordance with s. 732.502, a qualified 446 custodian who at any time maintains custody of the electronic 447 record of the testator’s electronic will must cease serving in 448 such capacity and must deliver to a successor qualified 449 custodian designated in writing by the testator the electronic 450 record containing the electronic will and the affidavit required 451 in subparagraph (4)(b)3. 452 (6) A qualified custodian may not succeed to office as a 453 qualified custodian of an electronic will unless he or she 454 agrees in writing to serve in such capacity. 455 (7) If a qualified custodian is an entity, an affidavit, or 456 an appearance by the testator in the presence of a duly 457 authorized officer or agent of such entity, acting in his or her 458 own capacity as such, shall constitute an affidavit, or an 459 appearance by the testator in the presence of the qualified 460 custodian. 461 (8) A qualified custodian must provide a paper copy of an 462 electronic will and the electronic record containing the 463 electronic will to the testator immediately upon request. For 464 the first such request in any 365-day period, the testator may 465 not be charged a fee for being provided with these documents. 466 (9) The qualified custodian shall be liable for any damages 467 caused by the negligent loss or destruction of the electronic 468 record, including the electronic will, while it is in the 469 possession of the qualified custodian. A qualified custodian may 470 not limit liability for such damages. 471 (10) A qualified custodian may not terminate or suspend 472 access to, or downloads of, the electronic will by the testator. 473 (11) Upon receiving information that the testator is dead, 474 a qualified custodian must deposit the electronic will with the 475 court in accordance with s. 732.901. A qualified custodian may 476 not charge a fee for depositing the electronic will with the 477 clerk, providing the affidavit is made in accordance with s. 478 732.503, or furnishing in writing any information requested by a 479 court under paragraph (1)(d). 480 (12) Except as provided in this act, a qualified custodian 481 must at all times keep information provided by the testator 482 confidential and may not disclose such information to any third 483 party. 484 Section 10. Section 733.201, Florida Statutes is amended to 485 read: 486 733.201 Proof of wills.— 487 (1) Self-proved wills executed in accordance with this code 488 may be admitted to probate without further proof. 489 (2) A will, other than an electronic will, may be admitted 490 to probate upon the oath of any attesting witness taken before 491 any circuit judge, commissioner appointed by the court, or 492 clerk. 493 (3) If it appears to the court that the attesting witnesses 494 cannot be found or that they have become incapacitated after the 495 execution of the will or their testimony cannot be obtained 496 within a reasonable time, a will, other than an electronic will, 497 may be admitted to probate upon the oath of the personal 498 representative nominated by the will as provided in subsection 499 (2), whether or not the nominated personal representative is 500 interested in the estate, or upon the oath of any person having 501 no interest in the estate under the will stating that the person 502 believes the writing exhibited to be the true last will of the 503 decedent. 504 (4) If an electronic will, including an electronic will 505 whose execution included the use of a video conference under s. 506 732.525(1)(b), is not self-proved, an electronic will may be 507 admitted to probate upon the oath of the two attesting witnesses 508 for the electronic will taken before any circuit judge, any 509 commissioner appointed by the court, or the clerk. If it appears 510 to the court that the attesting witnesses cannot be found, that 511 they have become incapacitated after the execution of the 512 electronic will, or that their testimony cannot be obtained 513 within a reasonable time, an electronic will may be admitted to 514 probate upon the oath of two disinterested witnesses providing 515 all of the following information: 516 (a) The date on which the electronic will was created, if 517 the date is not indicated in the electronic will itself. 518 (b) When and how the electronic will was discovered, and by 519 whom. 520 (c) All of the people who had access to the electronic 521 will. 522 (d) The method by which the electronic will was stored and 523 the safeguards that were in place to prevent alterations to the 524 electronic will. 525 (e) A statement as to whether the electronic will has been 526 altered since its creation. 527 (f) A statement that the electronic will is a true, 528 correct, and complete tangible manifestation of the testator’s 529 will. 530 (g) If the execution of an electronic will included the use 531 of a video conference under s. 732.525(1)(b), a statement as to 532 whether a recording of the video conference is available for 533 inspection by the court or cannot be found after a diligent 534 search. 535 (5) A paper copy of an electronic will which is a true and 536 correct copy of the electronic will may be offered for and 537 admitted to probate and shall constitute an “original” of the 538 electronic will. 539 Section 11. Subsection (11) of section 736.0103, Florida 540 Statutes, is amended to read: 541 736.0103 Definitions.—Unless the context otherwise 542 requires, in this code: 543 (11) “Interests of the beneficiaries” means the beneficial 544 interests intended by the settlor as provided in the terms of a 545thetrust. 546 Section 12. Paragraph (c) of subsection (2) of section 547 736.0105, Florida Statutes, is amended to read: 548 736.0105 Default and mandatory rules.— 549 (2) The terms of a trust prevail over any provision of this 550 code except: 551 (c) The requirement that a trustand its terms be for the552benefit of the trust’s beneficiaries, and that the trusthave a 553 purpose that is lawful, not contrary to public policy, and 554 possible to achieve. 555 Section 13. Subsections (1) and (3) of section 736.0109, 556 Florida Statutes, are amended to read: 557 736.0109 Methods and waiver of notice.— 558 (1) Notice to a person under this code or the sending of a 559 document to a person under this code must be accomplished in a 560 manner reasonably suitable under the circumstances and likely to 561 result in receipt of the notice or document. Permissible methods 562 of notice or for sending a document include first-class mail, 563 personal delivery, delivery to the person’s last known place of 564 residence or place of business,ora properly directed facsimile 565 or other electronic message, or posting to a secure electronic 566 account or website in accordance with subsection (3). 567 (3) A document that is sent solely by posting to an 568 electronic account or website is not deemed sent for purposes of 569 this section unless the sender complies with this subsection. 570 The sender has the burden of proving compliance with this 571 subsectionIn addition to the methods listed in subsection (1)572for sending a document, a sender may post a document to a secure573electronic account or website where the document can be574accessed. 575 (a)Before a document may be posted to an electronic576account or website,The recipient must sign a separate written 577 authorization solely for the purpose of authorizing the sender 578 to post documents on an electronic account or website before 579 such posting. The written authorization must: 580 1. Specifically indicate whether a trust accounting, trust 581 disclosure document, or limitation notice, as those terms are 582 defined in s. 736.1008(4), will be posted in this manner, and 583 generally enumerate the other types of documents that may be 584 posted in this manner. 585 2. Contain specific instructions for accessing the 586 electronic account or website, including the security procedures 587 required to access the electronic account or website, such as a 588 username and password. 589 3. Advise the recipient that a separate notice will be sent 590 when a document is posted to the electronic account or website 591 and the manner in which the separate notice will be sent. 592 4. Advise the recipient that the authorization to receive 593 documents by electronic posting may be amended or revoked at any 594 time and include specific instructions for revoking or amending 595 the authorization, including the address designated for the 596 purpose of receiving notice of the revocation or amendment. 597 5. Advise the recipient that posting a document on the 598 electronic account or website may commence a limitations period 599 as short as 6 months even if the recipient never actually 600 accesses the electronic account, electronic website, orthe601 document. 602 (b) Once the recipient signs the written authorization, the 603 sender must provide a separate notice to the recipient when a 604 document is posted to the electronic account or website. As used 605 in this subsection, the term “separate notice” means a notice 606 sent to the recipient by means other than electronic posting, 607 which identifies each document posted to the electronic account 608 or website and provides instructions for accessing theposted609 document. The separate notice requirement is deemed satisfied if 610 the recipient accesses the document on the electronic account or 611 website. 612 (c) A document sent by electronic posting is deemed 613 received by the recipient on the earlier of the date on which 614thatthe separate notice is received or the date on whichthat615 the recipient accesses the document on the electronic account or 616 website. 617 (d) At least annually after a recipient signs a written 618 authorization, a sender shall send a notice advising recipients 619 who have authorized one or more documents to be posted to an 620 electronic account or website that such posting may commence a 621 limitations period as short as 6 months even if the recipient 622 never accesses the electronic account or website or the document 623 and that authority to receive documents by electronic posting 624 may be amended or revoked at any time. This notice must be given 625 by means other than electronic posting and may not be 626 accompanied by any other written communication. Failure to 627 provide such notice within 380 days after the last notice is 628 deemed to automatically revoke the authorization to receive 629 documents in the manner permitted under this subsection 380 days 630 after the last notice is sent. 631 (e) The notice required in paragraph (d) may be in 632 substantially the following form: “You have authorized the 633 receipt of documents through posting to an electronic account or 634 website on whichwherethe documents can be accessed. This 635 notice is being sent to advise you that a limitations period, 636 which may be as short as 6 months, may be running as to matters 637 disclosed in a trust accounting or other written report of a 638 trustee posted to the electronic account or website even if you 639 never actually access the electronic account or website or the 640 documents. You may amend or revoke the authorization to receive 641 documents by electronic posting at any time. If you have any 642 questions, please consult your attorney.” 643 (f) A sender may rely on the recipient’s authorization 644 until the recipient amends or revokes the authorization by 645 sending a notice to the address designated for that purpose in 646 the authorization or in the manner specified on the electronic 647 account or website. The recipient, at any time, may amend or 648 revoke an authorization to have documents posted on the 649 electronic account or website. 650 (g) If a document is provided to a recipient solely through 651 electronic posting pursuant to this subsection, the recipient 652 must be able to access and print or download the document until 653 the earlier ofremain accessible to the recipient on the654electronic account or website for at least4 years after the 655 date that the document is deemed received by the recipient or 656 the date upon which the recipient’s access to the electronic 657 account or website is terminated for any reason. 658 1. If the recipient’s access to the electronic account or 659 website is terminated for any reason, such termination does not 660 invalidate the notice or sending of any document previously 661 posted on the electronic account or website in accordance with 662 this subsection, but may toll the applicable limitations period 663 as provided in subparagraph 2. 664 2. If the recipient’s access to the electronic account or 665 website is terminated by the sender sooner than 4 years after 666 the date on which the document was received by the recipient, 667 any applicable limitations period set forth in s. 736.1008(1) or 668 (2) which is still running is tolled for any information 669 adequately disclosed in a document sent solely by electronic 670 posting, from the date on which the recipient’s access to the 671 electronic account or website was terminated by the sender until 672 45 days after the date on which the sender provides one of the 673 following to the recipient by means other than electronic 674 posting: 675 a. Notice of such termination and notification to the 676 recipient that he or she may request that any documents sent 677 during the prior 4 years solely through electronic posting be 678 provided to him or her by other means at no cost; or 679 b. Notice of such termination and notification to the 680 recipient that his or her access to the electronic account or 681 website has been restored. 682 683 Any applicable limitations period is further tolled from the 684 date on which any request is made pursuant to sub-subparagraph 685 2.a. until 20 days after the date on which the requested 686 documents are provided to the recipient by means other than 687 electronic postingThe electronic account or website must allow688the recipient to download or print the document.This subsection689does not affect or alter the duties of a trustee to keep clear,690distinct, and accurate records pursuant to s. 736.0810 or affect691or alter the time periods for which the trustee must maintain692those records.693 (h) For purposes of this subsection, access to an 694 electronic account or website is terminated by the sender when 695 the sender unilaterally terminates the recipient’s ability to 696 access the electronic website or account or download or print 697 any document posted on such website or account. Access is not 698 terminated by the sender when access is terminated by an action 699 of the recipient or by an action of the sender in response to 700 the recipient’s request to terminate access. The recipient’s 701 revocation of authorization pursuant to paragraph (f) is not 702 considered a request to terminate accessTo be effective, the703posting of a document to an electronic account or website must704be done in accordance with this subsection. The sender has the705burden of establishing compliance with this subsection. 706 (i) This subsection does not affect or alter the duties of 707 a trustee to keep clear, distinct, and accurate records pursuant 708 to s. 736.0810 or affect or alter the time periods for which the 709 trustee must maintain such recordspreclude the sending of a710document by other means. 711 (j) This subsection governs the posting of a document 712 solely for the purpose of giving notice under this code or the 713 sending of a document to a person under this code and does not 714 prohibit or otherwise apply to the posting of a document to an 715 electronic account or website for any other purpose or preclude 716 the sending of a document by any other means. 717 Section 14. Subsection (3) of section 736.0110, Florida 718 Statutes, is amended to read: 719 736.0110 Others treated as qualified beneficiaries.— 720 (3) The Attorney General may assert the rights of a 721 qualified beneficiary with respect to a charitable trust having 722 its principal place of administration in this state. The 723 Attorney General has standing to assert such rights in any 724 judicial proceedings. 725 Section 15. Paragraph (b) of subsection (2) of section 726 736.0403, Florida Statutes, is amended to read: 727 736.0403 Trusts created in other jurisdictions; formalities 728 required for revocable trusts.— 729 (2) Notwithstanding subsection (1): 730 (b) The testamentary aspects of a revocable trust, executed 731 by a settlor who is a domiciliary of this state at the time of 732 execution, are invalid unless the trust instrument is executed 733 by the settlor with the formalities required for the execution 734 of a will under s. 732.502 or an electronic will under s. 735 732.523 which is self-proved; however, the qualified custodian 736 of the trust instrument may not also be a trustee of the trust 737in this state. For purposes of this subsection, the term 738 “testamentary aspects” means those provisions of the trust 739 instrument that dispose of the trust property on or after the 740 death of the settlor other than to the settlor’s estate. 741 Section 16. Section 736.0404, Florida Statutes, is amended 742 to read: 743 736.0404 Trust purposes.—A trust may be created only to the 744 extent the purposes of the trust are lawful, not contrary to 745 public policy, and possible to achieve.A trust and its terms746must be for the benefit of its beneficiaries.747 Section 17. Effective upon becoming a law, section 748 736.04117, Florida Statutes, is amended to read: 749 736.04117 Trustee’s power to invade principal in trust.— 750 (1) DEFINITIONS.—As used in this section, the term: 751 (a) “Absolute power” meansUnless the trust instrument752expressly provides otherwise, a trustee who has absolute power753under the terms of a trust to invade the principal of the trust,754referred to in this section as the “first trust,” to make755distributions to or for the benefit of one or more persons may756instead exercise the power by appointing all or part of the757principal of the trust subject to the power in favor of a758trustee of another trust, referred to in this section as the759“second trust,” for the current benefit of one or more of such760persons under the same trust instrument or under a different761trust instrument; provided:7621. The beneficiaries of the second trust may include only763beneficiaries of the first trust;7642. The second trust may not reduce any fixed income,765annuity, or unitrust interest in the assets of the first trust;766and7673. If any contribution to the first trust qualified for a768marital or charitable deduction for federal income, gift, or769estate tax purposes under the Internal Revenue Code of 1986, as770amended, the second trust shall not contain any provision which,771if included in the first trust, would have prevented the first772trust from qualifying for such a deduction or would have reduced773the amount of such deduction.774(b) For purposes of this subsection, an absolute power to775invade principal shall includea power to invade principal that 776 is not limited to specific or ascertainable purposes, such as 777 health, education, maintenance, and support, regardless of 778 whetheror notthe term “absolute” is used. A power to invade 779 principal for purposes such as best interests, welfare, comfort, 780 or happiness constitutesshall constitutean absolute power not 781 limited to specific or ascertainable purposes. 782 (b) “Authorized trustee” means a trustee, other than the 783 settlor or a beneficiary, who has the power to invade the 784 principal of a trust. 785 (c) “Beneficiary with a disability” means a beneficiary of 786 the first trust who the authorized trustee believes may qualify 787 for governmental benefits based on disability, regardless of 788 whether the beneficiary currently receives those benefits or has 789 been adjudicated incapacitated. 790 (d) “Current beneficiary” means a beneficiary who, on the 791 date his or her qualification is determined, is a distributee or 792 permissible distributee of trust income or principal. The term 793 includes the holder of a presently exercisable general power of 794 appointment but does not include a person who is a beneficiary 795 only because he or she holds another power of appointment. 796 (e) “Governmental benefits” means financial aid or services 797 from any state, federal, or other public agency. 798 (f) “Internal Revenue Code” means the Internal Revenue Code 799 of 1986, as amended. 800 (g) “Power of appointment” has the same meaning as provided 801 in s. 731.201(30). 802 (h) “Presently exercisable general power of appointment” 803 means a power of appointment exercisable by the powerholder at 804 the relevant time. The term: 805 1. Includes a power of appointment that is exercisable only 806 after the occurrence of a specified event or that is subject to 807 a specified restriction, but only after the event has occurred 808 or the restriction has been satisfied. 809 2. Does not include a power exercisable only upon the 810 powerholder’s death. 811 (i) “Substantially similar” means that there is no material 812 change in a beneficiary’s beneficial interests or in the power 813 to make distributions and that the power to make a distribution 814 under a second trust for the benefit of a beneficiary who is an 815 individual is substantially similar to the power under the first 816 trust to make a distribution directly to the beneficiary. A 817 distribution is deemed to be for the benefit of a beneficiary 818 if: 819 1. The distribution is applied for the benefit of a 820 beneficiary; 821 2. The beneficiary is under a legal disability or the 822 trustee reasonably believes the beneficiary is incapacitated, 823 and the distribution is made as permitted under this code; or 824 3. The distribution is made as permitted under the terms of 825 the first trust instrument and the second trust instrument for 826 the benefit of the beneficiary. 827 (j) “Supplemental needs trust” means a trust that the 828 authorized trustee believes would not be considered a resource 829 for purposes of determining whether the beneficiary who has a 830 disability is eligible for governmental benefits. 831 (k) “Vested interest” means a current unconditional right 832 to receive a mandatory distribution of income, a specified 833 dollar amount, or a percentage of value of a trust, or a current 834 unconditional right to withdraw income, a specified dollar 835 amount, or a percentage of value of a trust, which right is not 836 subject to the occurrence of a specified event, the passage of a 837 specified time, or the exercise of discretion. 838 1. The term includes a presently exercisable general power 839 of appointment. 840 2. The term does not include a beneficiary’s interest in a 841 trust if the trustee has discretion to make a distribution of 842 trust property to a person other than such beneficiary. 843 (2) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN 844 AUTHORIZED TRUSTEE HAS ABSOLUTE POWER TO INVADE.— 845 (a) Unless a trust instrument expressly provides otherwise, 846 an authorized trustee who has absolute power under the terms of 847 the trust to invade its principal, referred to in this section 848 as the “first trust,” to make current distributions to or for 849 the benefit of one or more beneficiaries may instead exercise 850 such power by appointing all or part of the principal of the 851 trust subject to such power in favor of a trustee of one or more 852 other trusts, whether created under the same trust instrument as 853 the first trust or a different trust instrument, including a 854 trust instrument created for the purposes of exercising the 855 power granted by this section, each referred to in this section 856 as the “second trust,” for the current benefit of one or more of 857 such beneficiaries only if: 858 1. The beneficiaries of the second trust include only 859 beneficiaries of the first trust; and 860 2. The second trust does not reduce any vested interest. 861 (b) In an exercise of absolute power, the second trust may: 862 1. Retain a power of appointment granted in the first 863 trust; 864 2. Omit a power of appointment granted in the first trust, 865 other than a presently exercisable general power of appointment; 866 3. Create or modify a power of appointment if the 867 powerholder is a current beneficiary of the first trust; 868 4. Create or modify a power of appointment if the 869 powerholder is a beneficiary of the first trust who is not a 870 current beneficiary, but the exercise of the power of 871 appointment may take effect only after the powerholder becomes, 872 or would have become if then living, a current beneficiary of 873 the first trust; and 874 5. Extend the term of the second trust beyond the term of 875 the first trust. 876 (c) The class of permissible appointees in favor of which a 877 created or modified power of appointment may be exercised may 878 differ from the class identified in the first trust. 879 (3) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN 880 AUTHORIZED TRUSTEE DOES NOT HAVE ABSOLUTE POWER TO INVADE. 881 Unless the trust instrument expressly provides otherwise, an 882 authorized trustee who has a power, other than an absolute 883 power, under the terms of a first trust to invade principal to 884 make current distributions to or for the benefit of one or more 885 beneficiaries may instead exercise such power by appointing all 886 or part of the principal of the first trust subject to such 887 power in favor of a trustee of one or more second trusts. If the 888 authorized trustee exercises such power: 889 (a) The second trusts, in the aggregate, shall grant each 890 beneficiary of the first trust beneficial interests in the 891 second trusts which are substantially similar to the beneficial 892 interests of the beneficiary in the first trust. 893 (b) If the first trust grants a power of appointment to a 894 beneficiary of the first trust, the second trust shall grant 895 such power of appointment in the second trust to such 896 beneficiary, and the class of permissible appointees shall be 897 the same as in the first trust. 898 (c) If the first trust does not grant a power of 899 appointment to a beneficiary of the first trust, then the second 900 trust may not grant a power of appointment in the second trust 901 to such beneficiary. 902 (d) Notwithstanding paragraphs (a), (b), and (c), the term 903 of the second trust may extend beyond the term of the first 904 trust, and, for any period after the first trust would have 905 otherwise terminated, in whole or in part, under the provisions 906 of the first trust, the trust instrument of the second trust 907 may, with respect to property subject to such extended term: 908 1. Include language providing the trustee with the absolute 909 power to invade the principal of the second trust during such 910 extended term; and 911 2. Create a power of appointment, if the powerholder is a 912 current beneficiary of the first trust, or expand the class of 913 permissible appointees in favor of which a power of appointment 914 may be exercised. 915 (4) DISTRIBUTION FROM FIRST TRUST TO SUPPLEMENTAL NEEDS 916 TRUST.— 917 (a) Notwithstanding subsections (2) and (3), unless the 918 trust instrument expressly provides otherwise, an authorized 919 trustee who has the power under the terms of a first trust to 920 invade the principal of the first trust to make current 921 distributions to or for the benefit of a beneficiary with a 922 disability may instead exercise such power by appointing all or 923 part of the principal of the first trust in favor of a trustee 924 of a second trust that is a supplemental needs trust if: 925 1. The supplemental needs trust benefits the beneficiary 926 with a disability; 927 2. The beneficiaries of the second trust include only 928 beneficiaries of the first trust; and 929 3. The authorized trustee determines that the exercise of 930 such power will further the purposes of the first trust. 931 (b) Except as affected by any change to the interests of 932 the beneficiary with a disability, the second trusts, in the 933 aggregate, shall grant each other beneficiary of the first trust 934 beneficial interests in the second trusts which are 935 substantially similar to such beneficiary’s beneficial interests 936 in the first trust. 937 (5) PROHIBITED DISTRIBUTIONS.— 938 (a) An authorized trustee may not distribute the principal 939 of a trust under this section in a manner that would prevent a 940 contribution to that trust from qualifying for, or that would 941 reduce the exclusion, deduction, or other federal tax benefit 942 that was originally claimed or could have been claimed for, that 943 contribution, including: 944 1. The exclusions under s. 2503(b) or s. 2503(c) of the 945 Internal Revenue Code; 946 2. A marital deduction under s. 2056, s. 2056A, or s. 2523 947 of the Internal Revenue Code; 948 3. A charitable deduction under s. 170(a), s. 642(c), s. 949 2055(a), or s. 2522(a) of the Internal Revenue Code; 950 4. Direct skip treatment under s. 2642(c) of the Internal 951 Revenue Code; or 952 5. Any other tax benefit for income, gift, estate, or 953 generation-skipping transfer tax purposes under the Internal 954 Revenue Code. 955 (b) If S corporation stock is held in the first trust, an 956 authorized trustee may not distribute all or part of that stock 957 to a second trust that is not a permitted shareholder under s. 958 1361(c)(2) of the Internal Revenue Code. If the first trust 959 holds stock in an S corporation and is, or but for provisions of 960 paragraphs (a), (c), and (d) would be, a qualified subchapter S 961 trust within the meaning of s. 1361(d) of the Internal Revenue 962 Code, the second trust instrument may not include or omit a term 963 that prevents it from qualifying as a qualified subchapter S 964 trust. 965 (c) Except as provided in paragraphs (a), (b), and (d), an 966 authorized trustee may distribute the principal of a first trust 967 to a second trust regardless of whether the settlor is treated 968 as the owner of either trust under ss. 671-679 of the Internal 969 Revenue Code; however, if the settlor is not treated as the 970 owner of the first trust, he or she may not be treated as the 971 owner of the second trust unless he or she at all times has the 972 power to cause the second trust to cease being treated as if it 973 were owned by the settlor. 974 (d) If an interest in property which is subject to the 975 minimum distribution rules of s. 401(a)(9) of the Internal 976 Revenue Code is held in trust, an authorized trustee may not 977 distribute such an interest to a second trust under subsection 978 (2), subsection (3), or subsection (4) if the distribution would 979 shorten the otherwise applicable maximum distribution period. 980 (6) EXERCISE BY WRITING.—The exercise of a power to invade 981 principal under subsection (2), subsection (3), or subsection 982 (4) mustThe exercise of a power to invade principal under983subsection(1)shallbe by a writtenaninstrumentin writing,984 signed and acknowledged by the authorized trustee,and filed 985 with the records of the first trust. 986 (7)(3)RESTRICTIONS ON EXERCISE OF POWER.—The exercise of a 987 power to invade principal under subsection (2), subsection (3), 988 or subsection (4): 989 (a) Is(1)shall beconsidered the exercise of a power of 990 appointment, excludingother thana power to appoint to the 991 authorized trustee, the authorized trustee’s creditors, the 992 authorized trustee’s estate, or the creditors of the authorized 993 trustee’s estate. 994 (b) Is, andShall besubject to the provisions of s. 995 689.225 covering the time at which the permissible period of the 996 rule against perpetuities begins and the law that determines the 997 permissible period of the rule against perpetuities of the first 998 trust. 999 (c) May be to a second trust created or administered under 1000 the law of any jurisdiction. 1001 (d) May not: 1002 1. Increase the authorized trustee’s compensation beyond 1003 the compensation specified in the first trust instrument; or 1004 2. Relieve the authorized trustee from liability for breach 1005 of trust or provide for indemnification of the authorized 1006 trustee for any liability or claim to a greater extent than the 1007 first trust instrument; however, the exercise of the power may 1008 divide and reallocate fiduciary powers among fiduciaries and 1009 relieve a fiduciary from liability for an act or failure to act 1010 of another fiduciary as otherwise allowed under law or common 1011 law. 1012 (8) NOTICE.— 1013 (a)(4)The authorized trustee shall provide written 1014 notification of the manner in which he or she intends to 1015 exercise his or her power to invade principal tonotifyall 1016qualified beneficiariesof the following partiesfirst trust,in1017writing,at least 60 days beforeprior tothe effective date of 1018 the authorized trustee’s exercise of such powerthe trustee’s1019power to invade principalpursuant to subsection (2), subsection 1020 (3), or subsection (4):(1), of the manner in which the trustee1021intends to exercise the power.1022 1. All qualified beneficiaries of the first trust; 1023 2. If paragraph (5)(c) applies, the settlor of the first 1024 trust; 1025 3. All trustees of the first trust; and 1026 4. Any person who has the power to remove or replace the 1027 authorized trustee of the first trust. 1028 (b) The authorizedA copy of the proposed instrument1029exercising the power shallsatisfy thetrustee’snotice1030 obligation to provide notice under this subsection is satisfied 1031 when he or she provides copies of the proposed instrument 1032 exercising the power, the trust instrument of the first trust, 1033 and the proposed trust instrument of the second trust. 1034 (c) If all of those required to be notifiedqualified1035beneficiarieswaive the notice period by signed written 1036 instrument delivered to the authorized trustee, the authorized 1037 trustee’s power to invade principal shall be exercisable 1038 immediately. 1039 (d) The authorized trustee’s notice under this subsection 1040 doesshallnot limit the right of any beneficiary to object to 1041 the exercise of the authorized trustee’s power to invade 1042 principal except as otherwise provided in other applicable 1043 provisions of this code. 1044 (9)(5)INAPPLICABILITY OF SPENDTHRIFT CLAUSE OR OTHER 1045 PROHIBITION.—The exercise of the power to invade principal under 1046 subsection (2), subsection (3), or subsection (4)(1)is not 1047 prohibited by a spendthrift clause or by a provision in the 1048 trust instrument that prohibits amendment or revocation of the 1049 trust. 1050 (10)(6)NO DUTY TO EXERCISE.—Nothing in this section is 1051 intended to create or imply a duty to exercise a power to invade 1052 principal, and no inference of impropriety mayshallbe made as 1053 a result of an authorized trustee’s failure to exercisea1054trustee not exercisingthe power to invade principal conferred 1055 under subsections (2), (3), and (4)subsection (1). 1056 (11)(7)NO ABRIDGEMENT OF COMMON LAW RIGHTS.—The provisions1057ofThis section mayshallnot be construed to abridge the right 1058 of any trustee who has a power of invasion to appoint property 1059 in further trust that arises under the terms of the first trust 1060 or under any other section of this code or under another 1061 provision of law or under common law. 1062 Section 18. Subsection (1) of section 736.0708, Florida 1063 Statutes, is amended to read: 1064 736.0708 Compensation of trustee.— 1065 (1) If the terms of a trust do not specify athetrustee’s 1066 compensation, theatrustee, including each cotrustee, is 1067 entitled to compensation that is reasonable under the 1068 circumstances. In the aggregate, the reasonable compensation for 1069 multiple trustees may be greater than for a single trustee. 1070 Section 19. Subsection (3) of section 736.08135, Florida 1071 Statutes, is amended to read: 1072 736.08135 Trust accountings.— 1073 (3) Subsections (1) and (2) govern the form and content of 1074This section applies toall trust accountings rendered for any 1075 accounting periods beginning on or after January 1, 2003, and 1076 all trust accountings rendered on or after July 1, 2017. This 1077 subsection does not affect the beginning period from which a 1078 trustee is required to render a trust accounting. 1079 Section 20. Subsection (3) of section 736.1008, Florida 1080 Statutes, is amended to read: 1081 736.1008 Limitations on proceedings against trustees.— 1082 (3) When a trustee has not issued a final trust accounting 1083 or has not given written notice to the beneficiary of the 1084 availability of the trust records for examination and that 1085 claims with respect to matters not adequately disclosed may be 1086 barred, a claim against the trustee for breach of trust based on 1087 a matter not adequately disclosed in a trust disclosure document 1088 is barred as provided in chapter 95 and accrues when the 1089 beneficiary has actual knowledge of: 1090 (a) The facts upon which the claim is based, if such actual 1091 knowledge is established by clear and convincing evidence; or 1092 (b) The trustee’s repudiation of the trust or adverse 1093 possession of trust assets. 1094 1095 Paragraph (a) applies to claims based upon acts or omissions 1096 occurring on or after July 1, 2008. A beneficiary’s actual 1097 knowledge that he or she has not received a trust accounting 1098 does not cause a claim to accrue against the trustee for breach 1099 of trust based upon the failure to provide a trust accounting 1100 required by s. 736.0813 or former s. 737.303 and does not 1101 commence the running of any period of limitations or laches for 1102 such a claim, and paragraph (a) and chapter 95 do not bar any 1103 such claim. 1104 Section 21. The changes to ss. 736.08135 and 736.1008, 1105 Florida Statutes, made by this act are intended to clarify 1106 existing law, are remedial in nature, and apply retroactively to 1107 all cases pending or commenced on or after July 1, 2017. 1108 Section 22. Present subsections (2), (3), and (4) of 1109 section 736.1201, Florida Statutes, are redesignated as 1110 subsections (3), (4), and (5), respectively, present subsection 1111 (5) of that section is amended, and a new subsection (2) is 1112 added to that section, to read: 1113 736.1201 Definitions.—As used in this part: 1114 (2) “Delivery of notice” means delivery of a written notice 1115 required under this part using any commercial delivery service 1116 requiring a signed receipt or by any form of mail requiring a 1117 signed receipt. 1118(5) “State attorney” means the state attorney for the1119judicial circuit of the principal place of administration of the1120trust pursuant to s. 736.0108.1121 Section 23. Section 736.1205, Florida Statutes, is amended 1122 to read: 1123 736.1205 Notice that this part does not apply.—In the case 1124 of a power to make distributions, if the trustee determines that 1125 the governing instrument contains provisions that are more 1126 restrictive than s. 736.1204(2), or if the trust contains other 1127 powers, inconsistent with the provisions of s. 736.1204(3) that 1128 specifically direct acts by the trustee, the trustee shall 1129 notify thestateAttorney General by delivery of notice when the 1130 trust becomes subject to this part. Section 736.1204 does not 1131 apply to any trust for which notice has been given pursuant to 1132 this section unless the trust is amended to comply with the 1133 terms of this part. 1134 Section 24. Sections 1 through 10 and section 15 of this 1135 act apply to electronic wills executed on or after July 1, 2017. 1136 Section 25. Subsection (2) of section 736.1206, Florida 1137 Statutes, is amended to read: 1138 736.1206 Power to amend trust instrument.— 1139 (2) In the case of a charitable trust that is not subject 1140 tothe provisions ofsubsection (1), the trustee may amend the 1141 governing instrument to comply withthe provisions ofs. 1142 736.1204(2) after delivery of notice to, and with the consent 1143 of, thestateAttorney General. 1144 Section 26. Section 736.1207, Florida Statutes, is amended 1145 to read: 1146 736.1207 Power of court to permit deviation.—This part does 1147 not affect the power of a court to relieve a trustee from any 1148 restrictions on the powers and duties that are placed on the 1149 trustee by the governing instrument or applicable law for cause 1150 shown and on complaint of the trustee, thestateAttorney 1151 General, or an affected beneficiary and notice to the affected 1152 parties. 1153 Section 27. Paragraph (b) of subsection (4) of section 1154 736.1208, Florida Statutes, is amended to read: 1155 736.1208 Release; property and persons affected; manner of 1156 effecting.— 1157 (4) Delivery of a release shall be accomplished as follows: 1158 (b) If the release is accomplished by reducing the class of 1159 permissible charitable organizations, by delivery of noticea1160copyof the release to thestateAttorney General, including a 1161 copy of the release. 1162 Section 28. Section 736.1209, Florida Statutes, is amended 1163 to read: 1164 736.1209 Election to come under this part.—With the consent 1165 of that organization or organizations, a trustee of a trust for 1166 the benefit of a public charitable organization or organizations 1167 may come under s. 736.1208(5) by delivery of notice tofiling1168withthestateAttorney General of theanelection, accompanied 1169 by the proof of required consent. Thereafter the trust shall be 1170 subject to s. 736.1208(5). 1171 Section 29. Except as otherwise provided in this act and 1172 except for this section, which shall take effect upon becoming a 1173 law, this act shall take effect July 1, 2017.