Bill Text: FL S1070 | 2021 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Estates and Trusts
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Passed) 2021-07-06 - Chapter No. 2021-183 [S1070 Detail]
Download: Florida-2021-S1070-Comm_Sub.html
Bill Title: Estates and Trusts
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Passed) 2021-07-06 - Chapter No. 2021-183 [S1070 Detail]
Download: Florida-2021-S1070-Comm_Sub.html
Florida Senate - 2021 CS for SB 1070 By the Committee on Judiciary; and Senator Berman 590-03162-21 20211070c1 1 A bill to be entitled 2 An act relating to estates and trusts; amending s. 3 69.031, F.S.; requiring the court to allow an officer 4 to elect to post and maintain a certain bond; 5 requiring the court to vacate or terminate an order 6 under certain circumstances; making technical changes; 7 amending s. 732.507, F.S.; providing that certain 8 provisions of a will are void upon dissolution of 9 marriage; specifying when dissolution of marriage 10 occurs; providing applicability; amending s. 736.0103, 11 F.S.; defining terms; revising the definition of the 12 term “terms of a trust”; amending s. 736.0105, F.S.; 13 revising the exceptions for when the terms of a trust 14 do not prevail over provisions of the Florida Trust 15 Code; amending s. 736.0201, F.S.; authorizing certain 16 proceedings to determine the homestead status of real 17 property owned by a trust to be filed in the probate 18 proceeding for the settlor’s estate; requiring that 19 such proceedings be governed by the Florida Probate 20 Rules; amending s. 736.0603, F.S.; transferring 21 provisions that authorize a trustee to follow certain 22 directions; amending s. 736.0703, F.S.; conforming 23 provisions to changes made by the act; repealing s. 24 736.0808, F.S., relating to powers to direct; amending 25 s. 736.1008, F.S.; specifying that certain claims 26 barred against a trustee or trust director are also 27 barred against certain persons acting for that 28 trustee; conforming provisions to changes made by the 29 act; amending s. 736.1017, F.S.; revising the 30 information required to be included in a certification 31 of trust; amending s. 736.1105, F.S.; revising the 32 effects that subsequent marriages, births, adoptions, 33 or dissolutions of marriage have on a revocable trust; 34 providing construction; providing applicability; 35 creating s. 736.1109, F.S.; specifying how title 36 passes for certain devises of homesteads which violate 37 the State Constitution; specifying that certain powers 38 do not subject an interest in a protected homestead to 39 certain claims; providing applicability; creating part 40 XIV of chapter 736, F.S., entitled the “Florida 41 Uniform Directed Trust Act”; creating s. 736.1401, 42 F.S.; providing a short title; creating s. 736.1403, 43 F.S.; providing applicability; providing for the 44 validity of certain terms in a directed trust which 45 designate principal places of administration; creating 46 s. 736.1405, F.S.; defining the term “power of 47 appointment”; providing applicability; specifying the 48 types of powers granted to persons other than 49 trustees; creating s. 736.1406, F.S.; authorizing the 50 terms of a trust to grant a power of direction to a 51 trust director; specifying the powers included in a 52 power of direction; creating s. 736.1407, F.S.; 53 providing for limitations on trust directors; creating 54 s. 736.1408, F.S.; providing duties and liabilities 55 for trust directors; creating s. 736.1409, F.S.; 56 providing duties and liabilities for directed 57 trustees; creating s. 736.141, F.S.; requiring a 58 trustee to provide certain information to a trust 59 director; requiring a trust director to provide 60 certain information to a trustee or another trust 61 director and a qualified beneficiary; providing that a 62 trustee or a trust director acting in reliance on 63 certain information is not liable for a breach of 64 trust in certain circumstances; creating s. 736.1411, 65 F.S.; specifying that trustees and trust directors do 66 not have a duty to monitor, inform, or advise 67 specified persons under certain circumstances; 68 creating s. 736.1412, F.S.; transferring provisions 69 relating to the appointment of trustees; creating s. 70 736.1413, F.S.; providing limitations on actions 71 against trust directors; creating s. 736.1414, F.S.; 72 authorizing trust directors to assert specified 73 defenses in certain actions; creating s. 736.1415, 74 F.S.; specifying that a trust director submits to 75 specified personal jurisdiction by accepting 76 appointment as a trust director; providing 77 construction; creating s. 736.1416, F.S.; requiring 78 trust directors to be considered a trustee for certain 79 purposes; authorizing certain persons to make a 80 specified written demand to accept or confirm prior 81 acceptance of trust directorships; creating part XV of 82 chapter 736, F.S., entitled the “Community Property 83 Trust Act”; creating s. 736.1501, F.S.; providing a 84 short title; creating s. 736.1502, F.S.; defining 85 terms; creating s. 736.1503, F.S.; providing that an 86 arrangement is a community property trust in certain 87 circumstances; creating s. 736.1504, F.S.; authorizing 88 settlor spouses to agree upon certain terms in an 89 agreement establishing a community property trust; 90 specifying when a community property trust may be 91 amended or revoked; specifying qualified beneficiaries 92 of community property trusts; creating s. 736.1505, 93 F.S.; providing that settlor spouses may classify any 94 property as community property by transferring that 95 property to a community property trust regardless of 96 domicile; providing for enforceability and duration of 97 a community property trust; providing that the right 98 to manage and control certain property is determined 99 by the terms of the trust agreement; providing the 100 effect of distributions from a community property 101 trust; creating s. 736.1506, F.S.; providing for the 102 satisfaction of obligations incurred by one or both 103 spouses from a community property trust; creating s. 104 736.1507, F.S.; providing for the disposition or 105 distribution of certain property upon the death of a 106 spouse; creating s. 736.1508, F.S.; providing for the 107 termination of a community property trust upon 108 dissolution of marriage; creating s. 736.1509, F.S.; 109 providing that a community property trust does not 110 adversely affect certain rights of a child; creating 111 s. 736.151, F.S.; providing that certain property held 112 in a community property trust qualifies as homestead 113 property; creating s. 736.1511, F.S.; providing for 114 the application of the Internal Revenue Code to a 115 community property trust; creating s. 736.1512, F.S.; 116 providing that a community property trust is not 117 enforceable in certain circumstances; amending ss. 118 736.0802, 736.08125, and 738.104, F.S.; conforming 119 cross-references; amending s. 744.3679, F.S.; 120 conforming a provision to changes made by the act; 121 providing a directive to the Division of Law Revision; 122 providing for severability; providing effective dates. 123 124 Be It Enacted by the Legislature of the State of Florida: 125 126 Section 1. Effective upon this act becoming a law, section 127 69.031, Florida Statutes, is amended to read: 128 69.031 Designated financial institutions for property 129assetsin hands of guardians, curators, administrators, 130 trustees, receivers, or other officers.— 131 (1) When it is expedient in the judgment of any court 132 having jurisdiction of any estate in process of administration 133 by any guardian, curator, executor, administrator, trustee, 134 receiver, or other officer, because the size of the bond 135 required of the officer is burdensome or for other cause, the 136 court may order part or all of the personal propertyassetsof 137 the estate placed with a bank, trust company, or savings and 138 loan association (which savings and loan association is a member 139 of the Federal Savings and Loan Insurance Corporation and doing 140 business in this state) designated by the court, consideration 141 being given to any bank, trust company or savings and loan 142 association proposed by the officer. Notwithstanding the 143 foregoing, in probate proceedings and in accordance with s. 144 733.402, the court shall allow the officer at any time to elect 145 to post and maintain bond for the value of the personal 146 property, or such other reasonable amount determined by the 147 court, whereupon the court shall vacate or terminate any order 148 establishing the depository. When the property isassets are149 placed with the designated financial institution, it shall file 150 a receipt therefor in the name of the estate and give the 151 officer a copy. Such receipt shall acknowledge the property 152assetsreceived by the financial institution. All interest, 153 dividends, principal and other debts collected by the financial 154 institution on account thereof shall be held by the financial 155 institution in safekeeping, subject to the instructions of the 156 officer authorized by order of the court directed to the 157 financial institution. 158 (2) Accountings shall be made to the officer at reasonably 159 frequent intervals. After the receipt for the original property 160assetshas been filed by the financial institution, the court 161 shall waive the bond given or to be given or reduce it so that 162 it shall apply only to the estate remaining in the hands of the 163 officer, whichever the court deems proper. 164 (3) When the court has ordered any propertyassetsof an 165 estate to be placed with a designated financial institution, any 166 person or corporation having possession or control of any of the 167 propertyassets, or owing interest, dividends, principal or 168 other debts on account thereof, shall pay and deliver such 169 propertyassets, interest, dividends, principal and other debts 170 to the financial institution on its demand whether the officer 171 has duly qualified or not, and the receipt of the financial 172 institution relieves the person or corporation from further 173 responsibility therefor. 174 (4) Any bank, trust company, or savings and loan 175 association which is designated under this section, may accept 176 or reject the designation in any instance, and shall file its 177 acceptance or rejection with the court making the designation 178 within 15 days after actual knowledge of the designation comes 179 to the attention of the financial institution, and if the 180 financial institution accepts, it shall be allowed a reasonable 181 amount for its services and expenses which the court may allow 182 as a charge against the propertyassetsplaced with the 183 financial institution. 184 Section 2. Effective upon this act becoming a law, section 185 732.507, Florida Statutes, is amended to read: 186 732.507 Effect of subsequent marriage, birth, adoption, or 187 dissolution of marriage.— 188 (1) Neither subsequent marriage, birth, nor adoption of 189 descendants shall revoke the prior will of any person, but the 190 pretermitted child or spouse shall inherit as set forth in ss. 191 732.301 and 732.302, regardless of the prior will. 192 (2) Any provision of a willexecuted by a married person193 that affects the testator’s spouse isof that person shall194becomevoid upon dissolution of the marriage of the testator and 195 the spouse, whether the marriage occurred before or after the 196 execution of such will. Upon dissolution of marriagethe divorce197of that person or upon the dissolution or annulment of the198marriage. After the dissolution, divorce, or annulment, the will 199 shall beadministered andconstrued as if theformerspousehad200 died at the time of the dissolution of marriage, divorce, or201annulment of the marriage, unless the will or the dissolution or202divorce judgment expressly provides otherwise. 203 (a) Dissolution of marriage occurs at the time the 204 decedent’s marriage is judicially dissolved or declared invalid 205 by court order. 206 (b) This subsection does not invalidate a provision of a 207 will: 208 1. Executed by the testator after the dissolution of the 209 marriage; 210 2. If there is a specific intention to the contrary stated 211 in the will; or 212 3. If the dissolution of marriage judgment expressly 213 provides otherwise. 214 (3) This section applies to wills of decedents who die on 215 or after the effective date of this section. 216 Section 3. Present subsections (6) through (13), (14) 217 through (21), and (22) and (23) of section 736.0103, Florida 218 Statutes, are redesignated as subsections (8) through (15), (17) 219 through (24), and (26) and (27), respectively, new subsections 220 (6), (7), and (16) and subsection (25) are added to that 221 section, and present subsection (21) of that section is amended, 222 to read: 223 736.0103 Definitions.—Unless the context otherwise 224 requires, in this code: 225 (6) “Directed trust” means a trust for which the terms of 226 the trust grant a power of direction. 227 (7) “Directed trustee” means a trustee that is subject to a 228 trust director’s power of direction. 229 (16) “Power of direction” means a power over a trust 230 granted to a person by the terms of the trust to the extent the 231 power is exercisable while the person is not serving as a 232 trustee. The term includes a power over the investment, 233 management, or distribution of trust property, a power to amend 234 a trust instrument or terminate a trust, or a power over other 235 matters of trust administration. The term excludes the powers 236 excluded from part XIV of this chapter under s. 736.1405(2). 237 (24)(21)“Terms of a trust” means: 238 (a) Except as otherwise provided in paragraph (b), the 239 manifestation of the settlor’s intent regarding a trust’s 240 provisions as: 241 1. Expressed in the trust instrument; or 242 2. Established by other evidence that would be admissible 243 in a judicial proceeding; or 244 (b) The trust’s provisions as established, determined, or 245 amended by: 246 1. A trustee or trust director in accordance with 247 applicable law; 248 2. Court order; or 249 3. A nonjudicial settlement agreement under s. 736.0111, 250 relating to nonjudicial settlement agreementsthe manifestation251of the settlor’s intent regarding a trust’s provisions as252expressed in the trust instrument or as may be established by253other evidence that would be admissible in a judicial254proceeding. 255 (25) “Trust director” means a person who is granted a power 256 of direction by the terms of a trust to the extent the power is 257 exercisable while the person is not serving as a trustee. The 258 person is a trust director whether or not the terms of the trust 259 refer to the person as a trust director and whether or not the 260 person is a beneficiary or settlor of the trust. 261 Section 4. Paragraph (b) of subsection (2) of section 262 736.0105, Florida Statutes, is amended to read: 263 736.0105 Default and mandatory rules.— 264 (2) The terms of a trust prevail over any provision of this 265 code except: 266 (b) Subject to s. 736.1409, relating to the duties and 267 liabilities of a directed trustee; s. 736.1411, relating to 268 limitations on duties of a trustee or trust director to monitor, 269 inform, or advise on matters involving the other; and s. 270 736.1412, relating to the allocation of powers among cotrustees, 271 requirements for excluded cotrustees to act as a directed 272 trustee, and liability and related obligations of directing 273 cotrustees, the duty of the trustee to act in good faith and in 274 accordance with the terms and purposes of the trust and the 275 interests of the beneficiaries. 276 Section 5. Subsection (1) of section 736.0201, Florida 277 Statutes, is amended, and subsection (7) is added to that 278 section, to read: 279 736.0201 Role of court in trust proceedings.— 280 (1) Except as provided in subsections (5),and(6), and (7) 281 and s. 736.0206, judicial proceedings concerning trusts shall be 282 commenced by filing a complaint and shall be governed by the 283 Florida Rules of Civil Procedure. 284 (7) A proceeding to determine the homestead status of real 285 property owned by a trust may be filed in the probate proceeding 286 for the settlor’s estate if the settlor was treated as the owner 287 of the interest held in the trust under s. 732.4015. The 288 proceeding shall be governed by the Florida Probate Rules. 289 Section 6. Subsection (3) is added to section 736.0603, 290 Florida Statutes, to read: 291 736.0603 Settlor’s powers; powers of withdrawal.— 292 (3) Subject to ss. 736.0403(2) and 736.0602(3)(a), the 293 trustee may follow a direction of the settlor that is contrary 294 to the terms of the trust while a trust is revocable. 295 Section 7. Subsections (3), (7), and (9) of section 296 736.0703, Florida Statutes, are amended to read: 297 736.0703 Cotrustees.— 298 (3) Subject to s. 736.1412, relating to the allocation of 299 powers among cotrustees, requirements for excluded cotrustees to 300 act as a directed trustee, and liability and related obligations 301 of directing cotrustees, a cotrustee must participate in the 302 performance of a trustee’s function unless the cotrustee is 303 unavailable to perform the function because of absence, illness, 304 disqualification under other provision of law, or other 305 temporary incapacity or the cotrustee has properly delegated the 306 performance of the function to another cotrustee. 307 (7) Except as otherwise provided in s. 736.1412, relating 308 to the allocation of powers among cotrustees, requirements for 309 excluded cotrustees to act as a directed trustee, and liability 310 and related obligations of directing cotrusteessubsection (9), 311 each cotrustee shall exercise reasonable care to: 312 (a) Prevent a cotrustee from committing a breach of trust. 313 (b) Compel a cotrustee to redress a breach of trust. 314(9)If the terms of a trust provide for the appointment of315more than one trustee but confer upon one or more of the316trustees, to the exclusion of the others, the power to direct or317prevent specified actions of the trustees, the excluded trustees318shall act in accordance with the exercise of the power. Except319in cases of willful misconduct on the part of the excluded320trustee, an excluded trustee is not liable, individually or as a321fiduciary, for any consequence that results from compliance with322the exercise of the power. An excluded trustee does not have a323duty or an obligation to review, inquire, investigate, or make324recommendations or evaluations with respect to the exercise of325the power. The trustee or trustees having the power to direct or326prevent actions of the excluded trustees shall be liable to the327beneficiaries with respect to the exercise of the power as if328the excluded trustees were not in office and shall have the329exclusive obligation to account to and to defend any action330brought by the beneficiaries with respect to the exercise of the331power. The provisions of s. 736.0808(2) do not apply if the332person entrusted with the power to direct the actions of the333excluded trustee is also a cotrustee.334 Section 8. Section 736.0808, Florida Statutes, is repealed. 335 Section 9. Present subsection (7) of section 736.1008, 336 Florida Statutes, is redesignated as subsection (8), a new 337 subsection (7) is added to that section, and paragraph (a) of 338 subsection (1), subsection (2), and paragraphs (a) and (c) of 339 subsection (4) of that section are amended, to read: 340 736.1008 Limitations on proceedings against trustees.— 341 (1) Except as provided in subsection (2), all claims by a 342 beneficiary against a trustee for breach of trust are barred as 343 provided in chapter 95 as to: 344 (a) All matters adequately disclosed in a trust disclosure 345 document issued by the trustee or a trust director, with the 346 limitations period beginning on the date of receipt of adequate 347 disclosure. 348 (2) Unless sooner barred by adjudication, consent, or 349 limitations, a beneficiary is barred from bringing an action 350 against a trustee for breach of trust with respect to a matter 351 that was adequately disclosed in a trust disclosure document 352 unless a proceeding to assert the claim is commenced within 6 353 months after receipt from the trustee or a trust director of the 354 trust disclosure document or a limitation notice that applies to 355 that disclosure document, whichever is received later. 356 (4) As used in this section, the term: 357 (a) “Trust disclosure document” means a trust accounting or 358 any other written report of the trustee or a trust director. A 359 trust disclosure document adequately discloses a matter if the 360 document provides sufficient information so that a beneficiary 361 knows of a claim or reasonably should have inquired into the 362 existence of a claim with respect to that matter. 363 (c) “Limitation notice” means a written statement of the 364 trustee or a trust director that an action by a beneficiary 365against the trusteefor breach of trust based on any matter 366 adequately disclosed in a trust disclosure document may be 367 barred unless the action is commenced within 6 months after 368 receipt of the trust disclosure document or receipt of a 369 limitation notice that applies to that trust disclosure 370 document, whichever is later. A limitation notice may but is not 371 required to be in the following form: “An action for breach of 372 trust based on matters disclosed in a trust accounting or other 373 written report of the trustee or a trust director may be subject 374 to a 6-month statute of limitations from the receipt of the 375 trust accounting or other written report. If you have questions, 376 please consult your attorney.” 377 (7) Any claim barred against a trustee or trust director 378 under this section is also barred against the directors, 379 officers, and employees acting for the trustee. 380 Section 10. Present paragraphs (e), (f), and (g) of 381 subsection (1) of section 736.1017, Florida Statutes, are 382 redesignated as paragraphs (f), (g), and (h), respectively, and 383 a new paragraph (e) is added to that subsection, to read: 384 736.1017 Certification of trust.— 385 (1) Instead of furnishing a copy of the trust instrument to 386 a person other than a beneficiary, the trustee may furnish to 387 the person a certification of trust containing the following 388 information: 389 (e) Whether the trust contains any powers of direction, and 390 if so, the identity of the current trust directors, the trustee 391 powers subject to a power of direction, and whether the trust 392 directors have directed or authorized the trustee to engage in 393 the proposed transaction for which the certification of trust 394 was issued. 395 Section 11. Effective upon this act becoming a law, section 396 736.1105, Florida Statutes, is amended to read: 397 (Substantial rewording of section. See 398 s. 736.1105, F.S., for present text.) 399 736.1105 Effect of subsequent marriage, birth, adoption, or 400 dissolution of marriage.— 401 (1) Neither subsequent marriage, birth, nor adoption of 402 descendants shall revoke the revocable trust of any person. 403 (2) Any provision of a revocable trust that affects the 404 settlor’s spouse is void upon dissolution of the marriage of the 405 settlor and the spouse, whether the marriage occurred before or 406 after the execution of such revocable trust. Upon dissolution of 407 marriage, the revocable trust shall be construed as if the 408 spouse had died at the time of the dissolution of marriage. 409 (a) Dissolution of marriage occurs at the time the 410 decedent’s marriage is judicially dissolved or declared invalid 411 by court order. 412 (b) This subsection does not invalidate a provision of a 413 revocable trust: 414 1. Executed by the settlor after the dissolution of the 415 marriage; 416 2. If there is a specific intention to the contrary stated 417 in the revocable trust; or 418 3. If the dissolution of marriage judgment expressly 419 provides otherwise. 420 (3) This section applies to revocable trusts of decedents 421 who die on or after the effective date of this section. 422 Section 12. Section 736.1109, Florida Statutes, is created 423 to read: 424 736.1109 Testamentary and revocable trusts; homestead 425 protections.— 426 (1) If a devise of homestead under a trust violates the 427 limitations on the devise of homestead in s. 4(c), Art. X of the 428 State Constitution, title shall pass as provided in s. 732.401 429 at the moment of death. 430 (2) A power of sale or general direction to pay debts, 431 expenses and claims within the trust instrument does not subject 432 an interest in the protected homestead to the claims of 433 decedent’s creditors, expenses of administration, and 434 obligations of the decedent’s estate as provided in s. 435 736.05053. 436 (3) If a trust directs the sale of property that would 437 otherwise qualify as protected homestead, and the property is 438 not subject to the constitutional limitations on the devise of 439 homestead under the State Constitution, title shall remain 440 vested in the trustee and subject to the provisions of the 441 trust. 442 (4) This section applies only to trusts described in s. 443 733.707(3) and to testamentary trusts. 444 (5) This section is intended to clarify existing law and 445 applies to the administration of trusts and estates of decedents 446 who die before, on, or after July 1, 2021. 447 Section 13. Part XIV of chapter 736, Florida Statutes, 448 consisting of ss. 736.1401-736.1416, Florida Statutes, is 449 created and entitled the “Florida Uniform Directed Trust Act.” 450 Section 14. Section 736.1401, Florida Statutes, is created 451 to read: 452 736.1401 Short title.—This part may be cited as the 453 “Florida Uniform Directed Trust Act.” 454 Section 15. Section 736.1403, Florida Statutes, is created 455 to read: 456 736.1403 Application; principal place of administration.— 457 (1) This part applies to a trust subject to this chapter, 458 whenever created, that has its principal place of administration 459 in the state, subject to the following rules: 460 (a) If the trust was created before July 1, 2021, this part 461 applies only to a decision or action occurring on or after July 462 1, 2021. 463 (b) If the principal place of administration of the trust 464 is changed to the state on or after July 1, 2021, this part 465 applies only to a decision or action occurring on or after the 466 date of the change. 467 (2) In addition s. 736.0108, relating to a trust’s 468 principal place of administration, in a directed trust, terms of 469 the trust that designate the principal place of administration 470 of the trust in the state are valid and controlling if a trust 471 director’s principal place of business is located in or a trust 472 director is a resident of the state. 473 Section 16. Section 736.1405, Florida Statutes, is created 474 to read: 475 736.1405 Exclusions.— 476 (1) As used in this section, the term “power of 477 appointment” means a power that enables a person acting in a 478 nonfiduciary capacity to designate a recipient of an ownership 479 interest in or another power of appointment over trust property. 480 (2) Unless the terms of a trust expressly provide otherwise 481 by specific reference to this part, section, or paragraph, this 482 part does not apply to: 483 (a) A power of appointment; 484 (b) A power to appoint or remove a trustee or trust 485 director; 486 (c) A power of a settlor over a trust while the trust is 487 revocable by that settlor; 488 (d) A power of a beneficiary over a trust to the extent the 489 exercise or nonexercise of the power affects the beneficial 490 interest of: 491 1. The beneficiary; or 492 2. Another beneficiary represented by the beneficiary under 493 ss. 736.0301-736.0305 with respect to the exercise or 494 nonexercise of the power; 495 (e) A power over a trust if the terms of the trust provide 496 that the power is held in a nonfiduciary capacity; and 497 1. The power must be held in a nonfiduciary capacity to 498 achieve the settlor’s tax objectives under the United States 499 Internal Revenue Code of 1986, as amended, and regulations 500 issued thereunder, as amended; or 501 2. It is a power to reimburse the settlor for all or a part 502 of the settlor’s income tax liabilities attributable to the 503 income of the trust; or 504 (f) A power to add or to release a power under the trust 505 instrument if the power subject to addition or release causes 506 the settlor to be treated as the owner of all or any portion of 507 the trust for federal income tax purposes. 508 (3) Unless the terms of a trust provide otherwise, a power 509 granted to a person other than a trustee: 510 (a) To designate a recipient of an ownership interest in 511 trust property, including a power to terminate a trust, is a 512 power of appointment and not a power of direction. 513 (b) To create, modify, or terminate a power of appointment 514 is a power of direction and not a power of appointment, except a 515 power to create a power of appointment that is an element of a 516 broader power to affect an ownership interest in trust property 517 beyond the mere creation of a power of appointment, such as a 518 power to appoint trust property in further trust, is a power of 519 appointment and not a power of direction. 520 Section 17. Section 736.1406, Florida Statutes, is created 521 to read: 522 736.1406 Power of trust director.— 523 (1) Subject to s. 736.1407, relating to trust directors 524 being subject to the same rules as a trustee regarding Social 525 Security Act reimbursement requirements and charitable trust 526 instruments, the terms of a trust may grant a power of direction 527 to a trust director. 528 (2) A power of direction includes only those powers granted 529 by the terms of the trust. 530 (3) Unless the terms of a trust provide otherwise: 531 (a) A trust director may exercise any further power 532 appropriate to the exercise or nonexercise of a power of 533 direction granted to the trust director under subsection (1); 534 and 535 (b) Trust directors with joint powers must act by majority 536 decision. 537 Section 18. Section 736.1407, Florida Statutes, is created 538 to read: 539 736.1407 Limitations on trust director.—A trust director is 540 subject to the same rules as a trustee in a like position and 541 under similar circumstances in the exercise or nonexercise of a 542 power of direction or further power under s. 736.1406(3)(a), 543 relating to additional power granted to a trust director in 544 furtherance of an express power of direction, regarding: 545 (1) A payback provision in the terms of a trust necessary 546 to comply with the reimbursement requirements of s. 1917 of the 547 Social Security Act, 42 U.S.C. s. 1396p(d)(4)(A), as amended, 548 and regulations issued thereunder, as amended. 549 (2) A charitable interest in the trust, including notice 550 regarding the interest to the Attorney General. 551 Section 19. Section 736.1408, Florida Statutes, is created 552 to read: 553 736.1408 Duty and liability of trust director.— 554 (1) Subject to subsection (2), with respect to a power of 555 direction or further power under s. 736.1406(3)(a), relating to 556 additional power granted to a trust director in furtherance of 557 an express power of direction: 558 (a) A trust director has the same fiduciary duty and 559 liability in the exercise or nonexercise of the power: 560 1. If the power is held individually, as a sole trustee in 561 a like position and under similar circumstances; or 562 2. If the power is held jointly with a trustee or another 563 trust director, as a cotrustee in a like position and under 564 similar circumstances. 565 (b) The terms of the trust may vary the trust director’s 566 duty or liability to the same extent the terms of the trust may 567 vary the duty or liability of a trustee in a like position and 568 under similar circumstances. 569 (2) Unless the terms of a trust provide otherwise, if a 570 trust director is licensed, certified, or otherwise authorized 571 or permitted by law other than this part to provide health care 572 in the ordinary course of the trust director’s business or 573 practice of a profession, to the extent the trust director acts 574 in that capacity the trust director has no duty or liability 575 under this part. 576 (3) The terms of a trust may impose a duty or liability on 577 a trust director in addition to the duties and liabilities under 578 this section. 579 Section 20. Section 736.1409, Florida Statutes, is created 580 to read: 581 736.1409 Duty and liability of directed trustee.— 582 (1) Subject to subsection (2), a directed trustee shall 583 take reasonable action to comply with a trust director’s 584 exercise or nonexercise of a power of direction or further power 585 under s. 736.1406(3)(a), relating to additional power granted to 586 a trust director in furtherance of an express power of 587 direction, and the trustee is not liable for such reasonable 588 action. 589 (2) A directed trustee may not comply with a trust 590 director’s exercise or nonexercise of a power of direction or 591 further power under s. 736.1406(3)(a), relating to additional 592 power granted to a trust director in furtherance of an express 593 power of direction, to the extent that by complying the trustee 594 would engage in willful misconduct. 595 (3) Before complying with a trust director’s exercise of a 596 power of direction, the directed trustee shall determine whether 597 or not the exercise is within the scope of the trust director’s 598 power of direction. The exercise of a power of direction is not 599 outside the scope of a trust director’s power of direction 600 merely because the exercise constitutes or may constitute a 601 breach of trust. 602 (4) An exercise of a power of direction under which a trust 603 director may release a trustee or another trust director from 604 liability for breach of trust is not effective if: 605 (a) The breach involved the trustee’s or other director’s 606 willful misconduct; 607 (b) The release was induced by improper conduct of the 608 trustee or other director in procuring the release; or 609 (c) At the time of the release, the trust director did not 610 know the material facts relating to the breach. 611 (5) A directed trustee that has reasonable doubt about its 612 duty under this section may apply to the court for instructions, 613 with attorney fees and costs to be paid from assets of the trust 614 as provided in this code. 615 (6) The terms of a trust may impose a duty or liability on 616 a directed trustee in addition to the duties and liabilities 617 under this part. 618 Section 21. Section 736.141, Florida Statutes, is created 619 to read: 620 736.141 Duty to provide information.— 621 (1) Subject to s. 736.1411, relating to limitations on the 622 duties of trustees or trust directors to monitor, inform, or 623 advise on matters involving the other, a trustee shall provide 624 information to a trust director to the extent the information is 625 reasonably related to the powers or duties of the trust 626 director. 627 (2) Subject to s. 736.1411, relating to limitations on the 628 duties of trustees or trust directors to monitor, inform, or 629 advise on matters involving the other, a trust director shall 630 provide information to a trustee or another trust director to 631 the extent the information is reasonably related to the powers 632 or duties of the trustee or other trust director. 633 (3) A trustee that acts in reliance on information provided 634 by a trust director is not liable for a breach of trust to the 635 extent the breach resulted from the reliance, unless by so 636 acting the trustee engages in willful misconduct. 637 (4) A trust director that acts in reliance on information 638 provided by a trustee or another trust director is not liable 639 for a breach of trust to the extent the breach resulted from the 640 reliance, unless by so acting the trust director engages in 641 willful misconduct. 642 (5) A trust director shall provide information within the 643 trust director’s knowledge or control to a qualified beneficiary 644 upon a written request of a qualified beneficiary to the extent 645 the information is reasonably related to the powers or duties of 646 the trust director. 647 Section 22. Section 736.1411, Florida Statutes, is created 648 to read: 649 736.1411 No duty to monitor, inform, or advise.— 650 (1) Notwithstanding s. 736.1409(1), relating to the duty of 651 a directed trustee to take reasonable action when directed and 652 to the release of liability for such action, unless the terms of 653 a trust provide otherwise: 654 (a) A trustee does not have a duty to: 655 1. Monitor a trust director; or 656 2. Inform or give advice to a settlor, beneficiary, 657 trustee, or trust director concerning an instance in which the 658 trustee might have acted differently than the trust director. 659 (b) By taking an action described in paragraph (a), a 660 trustee does not assume the duty excluded by paragraph (a). 661 (2) Notwithstanding s. 736.1408(1), relating to the 662 fiduciary duty of a trust director, unless the terms of a trust 663 provide otherwise: 664 (a) A trust director does not have a duty to: 665 1. Monitor a trustee or another trust director; or 666 2. Inform or give advice to a settlor, beneficiary, 667 trustee, or another trust director concerning an instance in 668 which the trust director might have acted differently than a 669 trustee or another trust director. 670 (b) By taking an action described in paragraph (a), a trust 671 director does not assume the duty excluded by paragraph (a). 672 Section 23. Section 736.1412, Florida Statutes, is created 673 to read: 674 736.1412 Application to cotrustee.— 675 (1) The terms of a trust may provide for the appointment of 676 more than one trustee but confer upon one or more of the 677 trustees, to the exclusion of the others, the power to direct or 678 prevent specified actions of the trustees. 679 (2) The excluded trustees shall act in accordance with the 680 exercise of the power in the manner, and with the same duty and 681 liability, as directed trustees with respect to a trust 682 director’s power of direction under s. 736.1409, relating to the 683 duties and liabilities of a directed trustee; s. 736.141, 684 relating to the duties of a trustee and trust director to 685 provide and rely on information; and s. 736.1411, relating to 686 limitations on the duties of trustees or trust directors to 687 monitor, inform, or advise on matters involving the other. 688 (3) The trustee or trustees having the power to direct or 689 prevent actions of the excluded trustees shall be liable to the 690 beneficiaries with respect to the exercise of the power as if 691 the excluded trustees were not in office and shall have the 692 exclusive obligation to account to and to defend any action 693 brought by the beneficiaries with respect to the exercise of the 694 power. 695 Section 24. Section 736.1413, Florida Statutes, is created 696 to read: 697 736.1413 Limitation of action against trust director.— 698 (1) An action against a trust director for breach of trust 699 must be commenced within the same limitation period for an 700 action for breach of trust against a trustee in a like position 701 and under similar circumstances under s. 736.1008, relating to 702 limitations on proceedings against trustees. 703 (2) A trust accounting or any other written report of a 704 trustee or a trust director has the same effect on the 705 limitation period for an action against a trust director for 706 breach of trust that such trust accounting or written report 707 would have under s. 736.1008, relating to limitations on 708 proceedings against trustees, in an action for breach of trust 709 against a trustee in a like position and under similar 710 circumstances. 711 Section 25. Section 736.1414, Florida Statutes, is created 712 to read: 713 736.1414 Defenses in action against trust director.—In an 714 action against a trust director for breach of trust, the trust 715 director may assert the same defenses a trustee in a like 716 position and under similar circumstances could assert in an 717 action for breach of trust against the trustee. 718 Section 26. Section 736.1415, Florida Statutes, is created 719 to read: 720 736.1415 Jurisdiction over trust director.— 721 (1) By accepting appointment as a trust director of a trust 722 subject to this part, the trust director submits to the personal 723 jurisdiction of the courts of the state regarding any matter 724 related to a power or duty of the trust director. 725 (2) This section does not preclude other methods of 726 obtaining jurisdiction over a trust director. 727 Section 27. Section 736.1416, Florida Statutes, is created 728 to read: 729 736.1416 Office of trust director.— 730 (1) Unless the terms of a trust provide otherwise, a trust 731 director shall be considered a trustee for purposes of the 732 following: 733 (a) Role of court in trust proceedings under s. 736.0201. 734 (b) Proceedings for review of employment of agents and 735 review of compensation of trustee and employees of a trust under 736 s. 736.0206. 737 (c) Representation by holder of power of appointment under 738 s. 736.0302(4), relating to how trustees with discretionary 739 power to make trust distributions do not have a power of 740 appointment for purposes of representing persons affected by 741 such power. 742 (d) Prohibition on a trustee acting as a designated 743 representative under s. 736.0306(2). 744 (e) Validation of power to select a beneficiary from an 745 indefinite class under s. 736.0402(3). 746 (f) As to allowing application by the trust director for 747 judicial modification of a trust when such modification is not 748 inconsistent with the settlor’s purpose under s. 736.04113, for 749 judicial construction of provisions relating to federal taxes 750 under s. 736.04114, for judicial modification of a trust when 751 such modification is in the best interest of the beneficiaries 752 under s. 736.04115, or for judicial modification or termination 753 of an uneconomic trust under s. 736.0414(2), if the trust 754 director is so authorized by the terms of the trust. 755 (g) Discretionary trusts and the effect of a standard under 756 s. 736.0504, relating to special provisions regarding 757 discretionary trusts. 758 (h) Trust assets not being subject to creditor claims by 759 reason of discretionary powers granted to a trustee under s. 760 736.0505(1)(c). 761 (i) A trustee’s duty to pay trust obligations and expenses 762 before paying obligations and expenses of the settlor’s estate 763 under s. 736.05053(4). 764 (j) Acceptance or declination of a trusteeship under s. 765 736.0701. 766 (k) Requirement to give bond to secure performance under 767 certain circumstances and court discretions relating to such 768 bonds under s. 736.0702. 769 (l) Filling trustee vacancies and court appointment of an 770 additional trustee or special fiduciary under s. 736.0704. 771 (m) Resignation of a trustee under s. 736.0705, including 772 requirements, court authorizations, and remaining liabilities. 773 (n) Court removal of a trustee, including who may request a 774 removal, under s. 736.0706, but not to give the trust director 775 the power to request removal of a trustee. 776 (o) Reasonable compensation of a trustee or professional 777 acting as a trustee under s. 736.0708. 778 (p) Entitlement of a trustee to reimbursement of expenses 779 and liens to secure advances under s. 736.0709. 780 (q) Authority to pay costs or attorney fees without 781 approval under s. 736.0802(10), if the trust director has a 782 power of direction or, if the trust director has a further power 783 to direct, the payment of such costs or attorney fees under s. 784 736.1406(2), relating to the explicit power of direction granted 785 to a trust director, or s. 736.1406(3)(a), relating to the 786 implied additional power of a director in furtherance of an 787 express power of direction. 788 (r) Limitations on a trustee’s discretionary powers under 789 s. 736.0814. 790 (s) Administration of trusts by trustees without regard to 791 pending contests or proceedings, except as the court directs, 792 under s. 736.08165. 793 (t) A trustee’s obligation to invest in accordance with 794 chapter 518 under s. 736.0901. 795 (u) The exception to the prudent investor rule for life 796 insurance under s. 736.0902. 797 (v) Remedies available for a trustee breach of trust under 798 s. 736.1001. 799 (w) Damages against a trustee for breach of trust under s. 800 736.1002. 801 (x) A trustee’s immunity from liability for loss or no 802 profit under s. 736.1003 if there is no breach of trust. 803 (y) Court-awarded attorney fees and costs under s. 736.1004 804 for breach of trust challenges. 805 (z) Fees available to a trustee’s attorney for 806 extraordinary service under s. 736.1007(5), court variance of 807 compensation for a trustee’s attorney under s. 736.1007(6), and 808 agreements between a settlor and an attorney for fees to be 809 provided to a trustee under s. 736.1007(7). 810 (aa) A trustee’s immunity from liability for a breach of 811 trust under s. 736.1009 if the trustee relied on the trust 812 instrument terms. 813 (bb) Limitations on a trustee’s liability for acting 814 without knowledge of relevant events under s. 736.1010. 815 (cc) Limitations on a trustee’s exculpation of liability 816 under the terms of a trust under s. 736.1011. 817 (dd) The release of a trustee from liability with consent, 818 the release or ratification of a beneficiary, and the 819 limitations on such actions under s. 736.1012. 820 (ee) Limitations on imposing liability on a trustee for 821 obligations of a settlor under s. 736.1014. 822 (2) If a person has not accepted a trust directorship under 823 the terms of the trust or has accepted or declined a trusteeship 824 under s. 736.0701 or a trustee, settlor, or a qualified 825 beneficiary of the trust is uncertain whether such acceptance 826 has occurred, a trustee, settlor, or a qualified beneficiary of 827 the trust may make a written demand on a person designated to 828 serve as a trust director, with a written copy to the trustees, 829 to accept or confirm prior acceptance of the trust directorship 830 in writing. A written acceptance, written acknowledgment of 831 prior acceptance, or written declination of the trust 832 directorship shall be delivered by the designated trust director 833 within 60 days after receipt of such demand to all trustees, 834 qualified beneficiaries, and the settlor if living. 835 Section 28. Part XV of chapter 736, Florida Statutes, 836 consisting of ss. 736.1501-736.1512, Florida Statutes, is 837 created and entitled the “Community Property Trust Act.” 838 Section 29. Section 736.1501, Florida Statutes, is created 839 to read: 840 736.1501 Short title.—This part may be cited as the 841 “Community Property Trust Act.” 842 Section 30. Section 736.1502, Florida Statutes, is created 843 to read: 844 736.1502 Definitions.—Unless the context otherwise 845 requires, as used in this part: 846 (1) “Community property” means the property and the 847 appreciation of and income from the property owned by a 848 qualified trustee of a community property trust during the 849 marriage of the settlor spouses. The property owned by a 850 community property trust pursuant to this part and the 851 appreciation of and income from such property shall be deemed to 852 be community property for purposes of general law. 853 (2) “Community property trust” means an express trust that 854 complies with s. 736.1503 and is created on or after July 1, 855 2021. 856 (3) “Decree” means a judgment or other order of a court of 857 competent jurisdiction. 858 (4) “Dissolution” means either: 859 (a) Termination of a marriage by a decree of dissolution, 860 divorce, annulment, or declaration of invalidity; or 861 (b) Entry of a decree of legal separation maintenance. 862 (5) “During marriage” means a period that begins at 863 marriage and ends upon the dissolution of marriage or upon the 864 death of a spouse. 865 (6) “Qualified trustee” means either: 866 (a) A natural person who is a resident of the state; or 867 (b) A company authorized to act as a trustee in the state. 868 869 A qualified trustee’s powers include, but are not limited to, 870 maintaining records for the trust on an exclusive or a 871 nonexclusive basis and preparing or arranging for the 872 preparation of, on an exclusive or a nonexclusive basis, any 873 income tax returns that must be filed by the trust. 874 (7) “Settlor spouses” means a married couple who 875 establishes a community property trust pursuant to this part. 876 Section 31. Section 736.1503, Florida Statutes, is created 877 to read: 878 736.1503 Requirements for community property trust.—An 879 arrangement is a community property trust if one or both settlor 880 spouses transfer property to a trust that: 881 (1) Expressly declares that the trust is a community 882 property trust within the meaning of this part. 883 (2) Has at least one trustee who is a qualified trustee, 884 provided that both spouses or either spouse also may be a 885 trustee. 886 (3) Is signed by both settlor spouses consistent with the 887 formalities required for the execution of a trust under this 888 chapter. 889 (4) Contains substantially the following language in 890 capital letters at the beginning of the community property trust 891 agreement: 892 893 THE CONSEQUENCES OF THIS COMMUNITY PROPERTY TRUST MAY 894 BE VERY EXTENSIVE, INCLUDING, BUT NOT LIMITED TO, YOUR 895 RIGHTS WITH RESPECT TO CREDITORS AND OTHER THIRD 896 PARTIES, AND YOUR RIGHTS WITH YOUR SPOUSE DURING THE 897 COURSE OF YOUR MARRIAGE, AT THE TIME OF A DIVORCE, AND 898 UPON THE DEATH OF YOU OR YOUR SPOUSE. ACCORDINGLY, 899 THIS TRUST AGREEMENT SHOULD BE SIGNED ONLY AFTER 900 CAREFUL CONSIDERATION. IF YOU HAVE ANY QUESTIONS ABOUT 901 THIS TRUST AGREEMENT, YOU SHOULD SEEK COMPETENT AND 902 INDEPENDENT LEGAL ADVICE. 903 904 Section 32. Section 736.1504, Florida Statutes, is created 905 to read: 906 736.1504 Agreement establishing community property trust; 907 amendments and revocation.— 908 (1) In the agreement establishing a community property 909 trust, the settlor spouses may agree upon: 910 (a) The rights and obligations in the property transferred 911 to the trust, notwithstanding when and where the property is 912 acquired or located. 913 (b) The management and control of the property transferred 914 into the trust. 915 (c) The disposition of the property transferred to the 916 trust on dissolution, death, or the occurrence or nonoccurrence 917 of another event, subject to ss. 736.1507 and 736.1508. 918 (d) Whether the trust is revocable or irrevocable. 919 (e) Any other matter that affects the property transferred 920 to the trust and does not violate public policy or general law 921 imposing a criminal penalty, or result in the property not being 922 treated as community property under the laws of any 923 jurisdiction. 924 (2) In the event of the death of a settlor spouse, the 925 surviving spouse may amend a community property trust regarding 926 the disposition of that spouse’s one-half share of the community 927 property, regardless of whether the agreement provides that the 928 community property trust is irrevocable. 929 (3) A community property trust may be amended or revoked by 930 the settlor spouses unless the agreement itself specifically 931 provides that the community property trust is irrevocable. 932 (4) Notwithstanding any other provision of this code, the 933 settlor spouses shall be deemed to be the only qualified 934 beneficiaries of a community property trust until the death of 935 one of the settlor spouses, regardless of whether the trust is 936 revocable or irrevocable. After the death of one of the settlor 937 spouses, the surviving spouse shall be deemed to be the only 938 qualified beneficiary as to his or her share of the community 939 property trust. 940 Section 33. Section 736.1505, Florida Statutes, is created 941 to read: 942 736.1505 Classification of property as community property; 943 enforcement; duration; management and control; effect of 944 distributions.— 945 (1) Whether both, one, or neither is domiciled in the 946 state, settlor spouses may classify any or all of their property 947 as community property by transferring that property to a 948 community property trust and providing in the trust that the 949 property is community property pursuant to this part. 950 (2) A community property trust is enforceable without 951 consideration. 952 (3) All property owned by a community property trust is 953 community property under the laws of the state during the 954 marriage of the settlor spouses. 955 (4) The right to manage and control property that is 956 transferred to a community property trust is determined by the 957 terms of the trust agreement. 958 (5) When property is distributed from a community property 959 trust, the property shall no longer constitute community 960 property within the meaning of this part, provided that 961 community property as classified by a jurisdiction other than 962 the state retains its character as community property to the 963 extent otherwise provided by ss. 732.216-732.228. 964 Section 34. Section 736.1506, Florida Statutes, is created 965 to read: 966 736.1506 Satisfaction of obligations.—Except as provided in 967 s. 4, Art. X of the State Constitution: 968 (1) An obligation incurred by only one spouse before or 969 during the marriage may be satisfied from that spouse’s one-half 970 share of a community property trust. 971 (2) An obligation incurred by both spouses during the 972 marriage may be satisfied from a community property trust of the 973 settlor spouses. 974 Section 35. Section 736.1507, Florida Statutes, is created 975 to read: 976 736.1507 Death of a spouse.—Upon the death of a spouse, 977 one-half of the aggregate value of the property held in a 978 community property trust established by the settlor spouses 979 reflects the share of the surviving spouse and is not subject to 980 testamentary disposition by the decedent spouse or distribution 981 under the laws of succession of the state. The other one-half of 982 the value of that property reflects the share of the decedent 983 spouse and is subject to testamentary disposition or 984 distribution under the laws of succession of the state. Unless 985 provided otherwise in the community property trust agreement, 986 the trustee has the power to distribute assets of the trust in 987 divided or undivided interests and to adjust resulting 988 differences in valuation. A distribution in kind may be made on 989 the basis of a non-pro rata division of the aggregate value of 990 the trust assets, on the basis of a pro rata division of each 991 individual asset, or by using both methods. The decedent’s 992 spouse’s one-half share shall not be included in the elective 993 estate. 994 Section 36. Section 736.1508, Florida Statutes, is created 995 to read: 996 736.1508 Dissolution of marriage.—Upon the dissolution of 997 the marriage of the settlor spouses, the community property 998 trust shall terminate and the trustee shall distribute one-half 999 of the trust assets to each spouse, with each spouse receiving 1000 one-half of each asset, unless otherwise agreed to in writing by 1001 both spouses. For purposes of this act, s. 61.075 does not apply 1002 to the disposition of the assets and liabilities held in a 1003 community property trust. 1004 Section 37. Section 736.1509, Florida Statutes, is created 1005 to read: 1006 736.1509 Right of child to support.—A community property 1007 trust does not adversely affect the right of a child of the 1008 settlor spouses to support that either spouse would be required 1009 to give under the applicable laws of the settlor spouses’ state 1010 of domicile. 1011 Section 38. Section 736.151, Florida Statutes, is created 1012 to read: 1013 736.151 Homestead property.— 1014 (1) Property that is transferred to or acquired subject to 1015 a community property trust may continue to qualify or may 1016 initially qualify as the settlor spouses’ homestead within the 1017 meaning of s. 4(a)(1), Art. X of the State Constitution and for 1018 all purposes of general law, provided that the property would 1019 qualify as the settlor spouses’ homestead if title was held in 1020 one or both of the settlor spouses’ individual names. 1021 (2) The settlor spouses shall be deemed to have beneficial 1022 title in equity to the homestead property held subject to a 1023 community property trust for all purposes, including for 1024 purposes of s. 196.031. 1025 Section 39. Section 736.1511, Florida Statutes, is created 1026 to read: 1027 736.1511 Application of Internal Revenue Code; community 1028 property classified by another jurisdiction.—For purposes of the 1029 application of s. 1014(b)(6) of the Internal Revenue Code of 1030 1986, 26 U.S.C. s. 1014(b)(6), as of January 1, 2021, a 1031 community property trust is considered a trust established under 1032 the community property laws of the state. Community property, as 1033 classified by a jurisdiction other than this state, which is 1034 transferred to a community property trust retains its character 1035 as community property while in the trust. If the trust is 1036 revoked and property is transferred on revocation of the trust, 1037 the community property as classified by a jurisdiction other 1038 than the state retains its character as community property to 1039 the extent otherwise provided by ss. 732.216-732.228. 1040 Section 40. Section 736.1512, Florida Statutes, is created 1041 to read: 1042 736.1512 Unenforceable trusts.— 1043 (1) A community property trust executed during marriage is 1044 not enforceable if the spouse against whom enforcement is sought 1045 proves that: 1046 (a) The trust was unconscionable when made; 1047 (b) The spouse against whom enforcement is sought did not 1048 execute the community property trust agreement voluntarily; or 1049 (c) Before execution of the community property trust 1050 agreement, the spouse against whom enforcement is sought: 1051 1. Was not given a fair and reasonable disclosure of the 1052 property and financial obligations of the other spouse. 1053 2. Did not voluntarily sign a written waiver expressly 1054 waiving right to disclosure of the property and financial 1055 obligations of the other spouse beyond the disclosure provided. 1056 3. Did not have notice of the property or financial 1057 obligations of the other spouse. 1058 (2) Whether a community property trust is unconscionable 1059 shall be determined by a court as a matter of law. 1060 (3) A community property trust may not be deemed 1061 unenforceable because the settlor spouses did not have separate 1062 legal representation when executing the trust. 1063 Section 41. Paragraph (f) of subsection (5) of section 1064 736.0802, Florida Statutes, is amended to read: 1065 736.0802 Duty of loyalty.— 1066 (5) 1067 (f)1. The trustee of a trust as defined in s. 731.201 may 1068 request authority to invest in investment instruments described 1069 in this subsection other than a qualified investment instrument, 1070 by providing to all qualified beneficiaries a written request 1071 containing the following: 1072 a. The name, telephone number, street address, and mailing 1073 address of the trustee and of any individuals who may be 1074 contacted for further information. 1075 b. A statement that the investment or investments cannot be 1076 made without the consent of a majority of each class of the 1077 qualified beneficiaries. 1078 c. A statement that, if a majority of each class of 1079 qualified beneficiaries consent, the trustee will have the right 1080 to make investments in investment instruments, as defined in s. 1081 660.25(6), which are owned or controlled by the trustee or its 1082 affiliate, or from which the trustee or its affiliate receives 1083 compensation for providing services in a capacity other than as 1084 trustee, that such investment instruments may include investment 1085 instruments sold primarily to trust accounts, and that the 1086 trustee or its affiliate may receive fees in addition to the 1087 trustee’s compensation for administering the trust. 1088 d. A statement that the consent may be withdrawn 1089 prospectively at any time by written notice given by a majority 1090 of any class of the qualified beneficiaries. 1091 1092 A statement by the trustee is not delivered if the statement is 1093 accompanied by another written communication other than a 1094 written communication by the trustee that refers only to the 1095 statement. 1096 2. For purposes of paragraph (e) and this paragraph: 1097 a. “Majority of the qualified beneficiaries” means: 1098 (I) If at the time the determination is made there are one 1099 or more beneficiaries as described in s. 736.0103(19)(c)s.1100736.0103(16)(c), at least a majority in interest of the 1101 beneficiaries described in s. 736.0103(19)(a)s.1102736.0103(16)(a), at least a majority in interest of the 1103 beneficiaries described in s. 736.0103(19)(b)s.1104736.0103(16)(b), and at least a majority in interest of the 1105 beneficiaries described in s. 736.0103(19)(c)s.1106736.0103(16)(c), if the interests of the beneficiaries are 1107 reasonably ascertainable; otherwise, a majority in number of 1108 each such class; or 1109 (II) If there is no beneficiary as described in s. 1110 736.0103(19)(c)s. 736.0103(16)(c), at least a majority in 1111 interest of the beneficiaries described in s. 736.0103(19)(a)s.1112736.0103(16)(a)and at least a majority in interest of the 1113 beneficiaries described in s. 736.0103(19)(b)s.1114736.0103(16)(b), if the interests of the beneficiaries are 1115 reasonably ascertainable; otherwise, a majority in number of 1116 each such class. 1117 b. “Qualified investment instrument” means a mutual fund, 1118 common trust fund, or money market fund described in and 1119 governed by s. 736.0816(3). 1120 c. An irrevocable trust is created upon execution of the 1121 trust instrument. If a trust that was revocable when created 1122 thereafter becomes irrevocable, the irrevocable trust is created 1123 when the right of revocation terminates. 1124 Section 42. Paragraph (a) of subsection (2) of section 1125 736.08125, Florida Statutes, is amended to read: 1126 736.08125 Protection of successor trustees.— 1127 (2) For the purposes of this section, the term: 1128 (a) “Eligible beneficiaries” means: 1129 1. At the time the determination is made, if there are one 1130 or more beneficiaries as described in s. 736.0103(19)(c) s. 1131736.0103(16)(c), the beneficiaries described in s. 1132 736.0103(19)(a) and (c)s. 736.0103(16)(a) and (c); or 1133 2. If there is no beneficiary as described in s. 1134 736.0103(19)(c)s. 736.0103(16)(c), the beneficiaries described 1135 in s. 736.0103(19)(a) and (b)s. 736.0103(16)(a) and (b). 1136 Section 43. Paragraph (d) of subsection (9) of section 1137 738.104, Florida Statutes, is amended to read: 1138 738.104 Trustee’s power to adjust.— 1139 (9) 1140 (d) For purposes of subsection (8) and this subsection, the 1141 term: 1142 1. “Eligible beneficiaries” means: 1143 a. If at the time the determination is made there are one 1144 or more beneficiaries described in s. 736.0103(19)(c)s.1145736.0103(16)(c), the beneficiaries described in s. 1146 736.0103(19)(a) and (c)s. 736.0103(16)(a) and (c); or 1147 b. If there is no beneficiary described in s. 1148 736.0103(19)(c)s. 736.0103(16)(c), the beneficiaries described 1149 in s. 736.0103(19)(a) and (b)s. 736.0103(16)(a) and (b). 1150 2. “Super majority of the eligible beneficiaries” means: 1151 a. If at the time the determination is made there are one 1152 or more beneficiaries described in s. 736.0103(19)(c)s.1153736.0103(16)(c), at least two-thirds in interest of the 1154 beneficiaries described in s. 736.0103(19)(a)s. 736.0103(16)(a)1155 or two-thirds in interest of the beneficiaries described in s. 1156 736.0103(19)(c)s. 736.0103(16)(c), if the interests of the 1157 beneficiaries are reasonably ascertainable; otherwise, it means 1158 two-thirds in number of either such class; or 1159 b. If there is no beneficiary described in s. 1160 736.0103(19)(c)s. 736.0103(16)(c), at least two-thirds in 1161 interest of the beneficiaries described in s. 736.0103(19)(a)s.1162736.0103(16)(a)or two-thirds in interest of the beneficiaries 1163 described in s. 736.0103(19)(b)s. 736.0103(16)(b), if the 1164 interests of the beneficiaries are reasonably ascertainable, 1165 otherwise, two-thirds in number of either such class. 1166 Section 44. Subsection (1) of section 744.3679, Florida 1167 Statutes, is amended to read: 1168 744.3679 Simplified accounting procedures in certain 1169 cases.— 1170 (1) In a guardianship of property, when all propertyassets1171 of the estate isarein designated depositories under s. 69.031 1172 and the only transactions that occur in that account are 1173 interest accrual, deposits from a settlement, or financial 1174 institution service charges, the guardian may elect to file an 1175 accounting consisting of: 1176 (a) The original or a certified copy of the year-end 1177 statement of the ward’s account from the financial institution; 1178 and 1179 (b) A statement by the guardian under penalty of perjury 1180 that the guardian has custody and control of the ward’s property 1181 as shown in the year-end statement. 1182 Section 45. The Division of Law Revision is directed to 1183 replace the phrase “the effective date of this section” wherever 1184 it occurs in this act with the date those sections become law. 1185 Section 46. If any provision of this act or the application 1186 thereof to any person or circumstance is held invalid, the 1187 invalidity does not affect other provisions or applications of 1188 this act which can be given effect without the invalid provision 1189 or application, and to this end the provisions of this act are 1190 severable. 1191 Section 47. Except as otherwise expressly provided in this 1192 act and except for this section, which shall take effect upon 1193 this act becoming a law, this act shall take effect July 1, 1194 2021.