This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1001e.JDC
DATE: 2/22/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1001 Trusts
SPONSOR(S): Judiciary Committee, Insurance & Banking Subcommittee, Beltran
TIED BILLS: IDEN./SIM. BILLS: SB 1368
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 11 Y, 4 N Mawn Jones
2) Insurance & Banking Subcommittee 16 Y, 0 N, As CS Hinshelwood Luczynski
3) Judiciary Committee 17 Y, 1 N, As CS Mawn Kramer
SUMMARY ANALYSIS
A trust is a relationship in which one party, the “settlor,” gives another party, the “trustee,” the right to hold title
to the settlor’s property or assets for a third party’s benefit. A trust may be created and take effect during a
settlor’s lifetime (“a living trust”) or a trust may be created by a will and take effect when the settlor dies. A
living trust may be revocable or irrevocable. The Florida Trust Code (“Trust Code”) applies to express trusts,
charitable and non-charitable trusts, and trusts created by a law, judgment, or decree that requires the trust to
be administered like an express trust. The Trust Code:
Contains a rule against perpetuities which provides that a trust is invalid unless it vests within 90 or 360
years, depending on the trust’s creation date.
States that a trust’s terms control over the Trust Code, with exceptions including the trustee’s duty to
provide a:
o Complete copy of the trust instrument to a qualified beneficiary upon reasonable request.
o Trust accounting containing specified information at least annually and upon trust termination or
trustee change.
Specifies acceptable methods for serving notices and documents, which includes posting notices and
documents on an electronic account or website or service by “other electronic methods.”
Authorizes a parent to represent or bind his or her unborn or minor child in specified circumstances.
Permits a trustee to elect to reimburse a grantor trust’s grantor for tax payments made by the grantor in
certain situations.
Establishes a 21-year enforcement period for a purpose trust.
CS/CS/HB 1001:
Amends Florida’s rule against perpetuities for a trust created on or after July 1, 2022, by extending to
1,000 years the time in which the trust must vest.
Authorizes a family trust company trustee to provide a specified financial statement in lieu of an annual
trust accounting in certain circumstances when not otherwise prohibited by the trust’s terms.
Expressly authorizes service of a notice or document by e-mail.
Authorizes a family trust company trustee to embed a notice or document in a secure attachment or
hyperlink in an email rather than requiring that such information be contained in the body of the e-mail.
Extends the right of a parent to represent or bind his or her unborn or minor child to such child’s unborn
or minor children in specified circumstances.
Clarifies the applicability of a statute relating to a trustee’s reimbursement to a grantor trust’s grantor for
tax payments made by the grantor.
Extends the enforcement period for a purpose trust from 21 years to 1,000 years.
The bill may have a positive indeterminate fiscal impact on state government and the private sector but does
not appear to have a fiscal impact on local governments.
The bill provides an effective date of July 1, 2022. STORAGE NAME: h1001e.JDC PAGE: 2
DATE: 2/22/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
A trust is a relationship in which one party, the “settlor,”
1
gives another party, the “trustee,” the right to
hold title to the settlor’s property or assets for a third party’s benefit (“beneficiary”). A trust may be
created and take effect during a settlor’s lifetime (“a living trust”) or a trust may be created by a will and
take effect when the settlor dies.
2
A living trust may be revocable
3
or irrevocable.
4
The Florida Trust
Code (“Trust Code”), set out in ch. 736, F.S., applies to express trusts,
5
charitable
6
and non-charitable
trusts, and trusts created by a law, judgment, or decree requiring the trust to be administered like an
express trust.
7
A family trust company is a corporation or limited liability company that is exclusively owned by family
members, acts as a fiduciary for family members, and generally may not act as a fiduciary for a non-
family member.
8
Family trust companies are usually formed to manage the wealth of high net-worth
families in lieu of traditional individual or institutional trustee arrangements for a variety of personal,
investment, regulatory, and tax reasons. Family trust companies operating in Florida must be licensed
or registered with the Office of Financial Regulation (“OFR”) under ch. 662, F.S.
Florida law recognizes three types of family trust companies:
Licensed family trust companies: A family trust company may elect to be a licensed family trust
company if the company desires to be subject to OFR’s regulatory oversight, and it must file an
application for licensure with OFR.
9
With respect to a licensed family trust company, OFR is
responsible for regulating, supervising, and examining the company.
10
Foreign licensed family trust company: A foreign licensed family trust company is licensed by
and has its principal place of business in a state other than Florida, is operated in accordance
with applicable laws of its licensing state, is subject to supervision by the state in which the
principal place of business is located, and is not a subsidiary of a foreign country.
11
A foreign
licensed family trust company must register with OFR before beginning operations in this
state.
12
OFR’s oversight role is limited to ensuring that fiduciary services provided by the foreign
licensed family trust company are restricted to family members and authorized related interests
and not available to the general public.
13
Registered family trust company: A family trust company that is not a foreign licensed family
trust company and does not apply to become a licensed family trust company must register with
OFR before beginning operations in this state.
14
OFR’s oversight role is limited to ensuring that
fiduciary services provided by the registered family trust company are restricted to family
members and authorized related interests and not to the general public.
15
1
“Settlor” means a person, including a testator, who creates or contributes property to a trust. S. 736.0103(18), F.S.
2
See “inter vivos trust” and “testamentary trust,” Black's Law Dictionary (11th ed. 2019).
3
A “revocable trust” is “[a] trust in which the settlor reserves the right to terminate the trust and recover the trust property and any
undistributed income.” Black's Law Dictionary (11th ed. 2019). Florida law specifically defines “revocable” as applied to a trust to mean
“revocable by the settlor without the consent of the trustee or a person holding an adverse interest.” S. 736.0103(17), F.S.
4
An “irrevocable trust” is “[a] trust that cannot be terminated by the settlor once it is created.” Black's Law Dictionary (11th ed. 2019).
5
An “express trust” is “[a] trust created with the settlor’s express intent, [usually] declared in writing.” Black's Law Dictionary (11th ed.
2019).
6
“Charitable trust” means a trust created for a charitable purpose, including the relief of poverty; the advancement of the arts, the
sciences, education, or religion; and the promotion of health, governmental, or municipal purposes. If the terms of a charitable trust do
not indicate a particular charitable purpose or beneficiary, the court may select one or more purposes or beneficiaries, which selection
must be consistent with the settlor’s intent to the extent it can be ascertained. S. 736.0405, F.S.
7
Ss. 736.0101 and 736.0102(1), F.S.
8
S. 662.111(12), F.S.
9
Ss. 662.102(2) and 662.121, F.S.
10
S. 662.102(3)(a), F.S.
11
S. 662.111(15)(c), F.S.
12
S. 662.122(2), F.S.
13
S. 662.102(3)(b), F.S.
14
S. 662.122(1), F.S.
15
S. 662.102(3)(b), F.S. STORAGE NAME: h1001e.JDC PAGE: 3
DATE: 2/22/2022
As of June 30, 2020, there are 16 family trust companies licensed or registered with OFR.
16
Rule Against Perpetuities
Background
The Florida Uniform Statutory Rule Against Perpetuities (“FUSRAP”) is a rule designed to prevent
remoteness in vesting.
17
Under FUSRAP, a non-vested property interest in real or personal property,
including an interest in a trust, is invalid unless:
When the interest is created, it is certain to vest or terminate no later than 21 years after the
death of an individual then alive; or
The interest either vests or terminates within 90 years after its creation.
18
Similar parameters apply to the maximum permissible period for exercising a power of appointment.
19
However, as to any trust created after December 31, 2000, the maximum trust duration and power of
appointment exercise period is extended from 90 years to 360 years unless the trust’s terms require
that all beneficial interests in the trust vest or terminate within a lesser time period.
20
Further, some
states, including Alaska, Colorado, Utah, and Wyoming, have increased the maximum trust vesting
period to 1,000 years, while other states, including Delaware, have abolished the vesting period,
allowing a trust to extend in perpetuity.
21
Effect of Proposed Changes
CS/CS/HB 1001 amends s. 689.225, F.S., to provide that, under FUSRAP, unless the trust’s terms
require that all beneficial interests in the trust vest or terminate within a shorter time period, the
maximum trust vesting period for any trust created:
After December 31, 2000, through June 30, 2022, is 360 years.
On or after July 1, 2022, is 1,000 years.
Practically speaking, a trust that fails to vest within these times, or a shorter time period specified in the
trust instrument, would be invalid and unenforceable.
Trust Instruments and Trust Accounting
Background
The Trust Code governs the duties and powers of a trustee, relations among trustees, and a
beneficiary’s rights and interests except as otherwise provided in a trust’s terms.
22
A trust’s terms
prevail over any Trust Code provision except those specified in statute, which includes the trustee’s
duty to keep the qualified beneficiaries reasonably informed of the trust and its administration
23
by:
Providing a complete copy of the trust instrument to a qualified beneficiary upon reasonable
request.
24
16
Office of Financial Regulation, Fast Facts (2021 ed.), https://flofr.gov/sitePages/documents/FastFacts.pdf (last visited Feb. 21, 2022).
17
“Vesting” is the point at which an interest becomes a legal right. A trust vests when the beneficiaries become absolutely entitled to the
trust’s assets. David F. Powell, Florida’s Statutory Rule Against Perpetuities, 11 Fla. St. U. L. Rev. 767 (1984),
https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2147&context=lr (last visited Feb. 21, 2022).
18
S. 689.225(2)(a), F.S.
19
“Power of appointment” is the legal authority to direct where an interest in a trust or estate may go. In the case of a trust, the
beneficiary may hold such power, and the trust instrument typically instructs the beneficiary as to the ways in which he or she may
exercise the power. S. 689.225(2)(b) and (c), F.S.
20
S. 689.225(2)(f), F.S.
21
Other states that allow a trust to extend in perpetuity include Idaho, Illinois, Kentucky, Missouri, New Hampshire, New Jersey, North
Carolina, Pennsylvania, Rhode Island, South Dakota, and Virginia. See Alaska Statute s. 34.27.051; Colo. Rev. Stat. s. 15-11-
1102.5(1)(a); 25 Del. Code. S. 503(e); Utah Code s. 75-2-1203; Wyo. Statute s. 34-1-139(a).
22
S. 736.0105(1), F.S.
23
S. 736.0813, F.S.
24
Ss. 736.0105(2) and 736.0813(1)(c), F.S. STORAGE NAME: h1001e.JDC PAGE: 4
DATE: 2/22/2022
Providing a trust accounting from the date of the last accounting or, if none, from the date on
which the trustee became accountable, to each qualified beneficiary of an irrevocable trust at
least annually and on trust termination or a trustee change.
25
Responding to a beneficiary’s reasonable request for relevant information about the trust’s
assets and liabilities and trust administration particulars.
26
In other words, these duties are mandatory and cannot be waived or altered by a trust’s terms.
However, a qualified beneficiary may waive the trustee’s duty to account.
27
A trust accounting must be a reasonably understandable report that adequately discloses the following
information:
A statement identifying the trust, the trustee furnishing the accounting, and the accounting
period;
A list of all cash and property transactions and all significant transactions affecting trust
administration during the accounting period, including compensation paid to the trustee and the
trustee’s agents;
The identity and value of trust assets on hand at the accounting period’s close and each known
noncontingent liability with an estimated current liability amount;
A list of significant transactions that do not affect the amount for which the trustee is
accountable;
The allocation of receipts, disbursements, accruals, or allowances between income and
principal when the allocation affects the interest of any trust beneficiary; and
A distribution plan for any undistributed assets shown on the final accounting.
28
Effect of Proposed Changes
The bill amends ss. 736.0105, 736.0813, and 736.08135, F.S., to create an alternative to the annual
trust accounting requirement for trusts managed by a family trust company. Specifically, the bill
provides that if a family trust company is a trustee of an irrevocable trust, the trust’s terms may
authorize such trustee to elect, for any accounting period beginning on or after July 1, 2022, to provide
a financial statement in lieu of a trust accounting to any qualified beneficiary and authorize accounting
to the qualified beneficiaries only upon:
Trust termination;
The removal, resignation, or other event resulting in a trustee ceasing to serve as a trustee; or
Demand of a qualified beneficiary or his or her representative.
The trustee must give notice of such election to the qualified beneficiaries, and the financial statement
must include:
Information identifying the trust, the trustee furnishing the accounting, and the accounting period
and, if applicable, a distribution plan for any undistributed assets shown on the final accounting.
A financial statement for the trust summarizing the information normally required in a trust
accounting and containing sufficient information to put the beneficiary on notice of the trust’s
comprehensive assets and liabilities and transactions occurring during the accounting period.
Under the bill:
A financial statement reporting the comprehensive assets and liabilities at the beginning and
end of the accounting period and the aggregate amounts of all cash and property transactions,
gains, losses, receipts, expenses, disbursements, distributions, accruals, or allowances
occurring within the accounting period for each category of assets and liabilities is an authorized
financial statement.
Such a financial statement is deemed to be a trust accounting.
25
Ss. 736.0105(2) and 736.0813(1)(d), F.S.
26
S. 736.0813(1)(e), F.S.
27
S. 736.0813(2), F.S.
28
S. 736.08135(1)-(3), F.S. STORAGE NAME: h1001e.JDC PAGE: 5
DATE: 2/22/2022
A family trust company trustee that elects to provide such a financial statement must, upon a
beneficiary’s request made within a specified time period from the beneficiary’s receipt of the
statement, make available the detailed information necessary for the statement’s preparation
within 30 days of the request. Such request tolls the running of any applicable statute of
limitations period until the detailed information is made available to the beneficiary.
The bill does not:
Prevent a family trust company trustee from voluntarily providing a trust accounting to the
qualified beneficiaries annually or at other times of the trustee’s choosing.
Relieve a family trust company trustee from the duty to respond to a beneficiary’s reasonable
request for relevant information about the trust’s assets and liabilities and trust administration
particulars.
Prevent a settlor from requiring in the trust’s terms that a trustee provide a trust accounting
rather than a financial statement.
Methods and Waivers of Notice
Background
Notice to a person or the sending of a document under the Trust Code must be accomplished in a
manner reasonably suitable under the circumstances and likely to result in receipt of the notice or
document.
29
Permissible methods of notice or for sending a document include first-class mail; personal
delivery; delivery to the person’s last known place of residence or business; a properly directed
facsimile or other electronic message; or posting on a secure electronic account or website in
accordance with statutory requirements.
30
Any such notice or document sent by electronic message is
complete when the document is sent, and an electronic message is presumed received on the date it is
sent.
31
However, if the sender has knowledge that an electronic message did not reach the recipient,
the electronic message is deemed to have not been received, and the sender has the burden to prove
that another copy of the notice or document was sent by electronic message or other authorized
means.
32
Further, a document sent solely by posting on an electronic account or website is not deemed sent
under the Trust Code unless:
The recipient signed a separate written authorization solely to authorize the sender to post
documents to an electronic account or website before such posting, which authorization
contains specific information and advisements.
33
The sender provides a separate notice to the recipient that the authorization may be amended
or revoked at any time and includes specific instructions for doing so.
34
At least annually after a recipient signs a written authorization, the sender sends a notice in a
statutorily-prescribed form advising recipients who have authorized documents to be posted on
an electronic account or website that:
o Such posting may commence a limitations period as short as six months even if the
recipient never accesses the electronic account or website; and
o Authority to receive documents by electronic posting may be amended or revoked at any
time.
35
A sender may rely on the recipient’s authorization to receive documents by electronic posting until the
recipient amends or revokes the authorization by sending notice of its revocation or amendment.
36
29
S. 736.0109(1), F.S.
30
Id.
31
S. 736.0109(4), F.S.
32
Id.
33
S. 736.0109(3)(a), F.S.
34
S. 736.0109(3)(b), F.S.
35
S. 736.0109(3)(d) and (e), F.S.
36
S. 736.0109(3)(f), F.S. STORAGE NAME: h1001e.JDC PAGE: 6
DATE: 2/22/2022
If a document is provided to a recipient solely through electronic posting, the recipient must be able to
access and print or download the document until the earlier of four years after the date the document is
deemed received or when the recipient’s access to the electronic account or website is terminated.
37
If
a recipient’s access to the electronic account or website is terminated by the sender sooner than four
years after the date the document is deemed received, any applicable limitations period is tolled for any
information adequately disclosed in a document sent solely by electronic posting from the date of
access termination until 45 days after the date on which the sender provides, by means other than
electronic posting, notice to the recipient of such termination and that:
The recipient may request that any documents sent during the prior four years solely through
electronic posting be provided to him or her by alternative means at no costs; or
The recipient’s access to the electronic account or website has been restored.
38
However, current law does not expressly address what happens if a notice or document is contained in
an attachment or hyperlink sent by e-mail but the information provided in the notice or document is not
conveyed in the body of the e-mail itself. Thus, it is unclear whether such attachment or hyperlink would
be treated as a notice or document sent by electronic message or solely by electronic posting.
Effect of Proposed Changes
The bill amends s. 736.0109, F.S., to clarify that “other electronic message” includes e-mail. The bill
also specifies that, notwithstanding the requirements for sending a document solely by posting on an
electronic account or website, a family trust company trustee may send a properly-directed e-mail that
contains an attached notice or document or a hyperlink through which the recipient can view the notice
or document. However, a notice or document sent in this manner is deemed sent only if any username,
password, or other specific instructions needed to access the notice or document are communicated to
the recipient either beforehand or contemporaneously with the sending of the e-mail message
containing the notice, document, or hyperlink, or upon the recipient’s request.
In other words, the bill authorizes a family trust company trustee to embed a notice or document in a
secure attachment or hyperlink in an email rather than requiring that such information be contained in
the body of the e-mail itself, and the use of a secure attachment or hyperlink does not require the
trustee to comply with the additional requirements prescribed for sending a document through posting
on an electronic account or website.
Representations by Fiduciaries and Parents
Background
Under Florida’s guardianship laws, parents jointly are the natural guardians of their own children, during
minority, unless the parents’ parental rights have been lawfully terminated.
39
Although natural guardians
have all the rights and authority over their minor child’s person, natural guardians do not have all the
rights and authority over their minor child’s property; instead, natural guardians are only authorized to
settle, collect, receive, and manage real or personal property distributed from an estate or trust to their
minor child when the amounts received, in the aggregate, do not exceed $15,000.
40
Where property
distributed from an estate or trust to a minor child exceeds $15,000, the court may appoint a property
guardian to administer the property on the minor child’s behalf.
41
Under the Trust Code, certain parties may be authorized to represent and bind other parties.
Specifically, to the extent that there is no conflict of interest between the representative and the person
represented or among those being represented with respect to a particular question or dispute:
A property guardian may represent and bind the estate that the guardian controls.
42
37
S. 736.0109(3)(g), F.S.
38
Id.
39
S. 744.301(1), F.S.
40
S. 744.301(2), F.S.
41
S. 736.0103(12), F.S.
42
S. 736.0303(1), F.S. STORAGE NAME: h1001e.JDC PAGE: 7
DATE: 2/22/2022
A parent may represent and bind the parent’s unborn or minor child if a property guardian for
the child has not been appointed.
43
However, the Trust Code only binds one generation of minors and unborn children, even though
subsequent generations also lack legal competence to represent their own interests in a trust
proceeding. Thus, a trustee seeking the consent of, or a release by, the beneficiaries of a multi-
generational trust
44
can only obtain such consent or release from living adult beneficiaries and of minor
or unborn children with living adult parents.
Effect of Proposed Changes
The bill amends s. 736.0303, F.S., to extend the right of parents to represent and bind their unborn and
minor children to:
The unborn descendants of any such unborn or minor children; and
The minor children of any such minor children.
Such right would only apply where a property guardian has not been appointed for such persons and
only to the extent that there is no conflict of interest between the representative and the person
represented or among those being represented with respect to a particular question or dispute.
Practically speaking, this would expand the number of beneficiaries of a multi-generational trust from
which a trustee could seek consent or a release through the trust’s living adult beneficiaries.
Noncharitable Trust Without Ascertainable Beneficiary
Background
Except as otherwise provided by law, a trust may be created for a noncharitable purpose without a
definite or definitely ascertainable beneficiary; this type of trust, commonly referred to as a “purpose
trust,” is enforceable for a period of 21 years unless the trust’s terms provide for a shorter enforcement
period.
45
A purpose trust’s property may be applied only to its intended use, except to the extent the
court determines that the trust property’s value exceeds the amount required for the intended use.
46
Property determined to not be required for the trust’s intended use must be distributed to the settlor, if
then living, and otherwise as part of the settlor’s estate, unless the trust’s terms provide otherwise.
47
Effect of Proposed Changes
The bill amends s. 736.0409, F.S., to increase a purpose trust’s maximum enforceability period from 21
years to 1,000 years, consistent with the changes made to FUSRAP under the bill. However, a purpose
trust’s terms may still provide for a shorter enforceability period.
Grantor Trust Reimbursement
Background
A settlor may be treated as the trust’s owner for federal income tax purposes under certain
circumstances.
48
A settlor so treated is referred to as the “grantor” and the trust is referred to as a
“grantor trust.”
49
A grantor must report all of the grantor trust’s income, losses, deductions, and credits
43
S. 736.0303(5), F.S.
44
A “multi-generational trust,” sometimes referred to as a dynasty trust, is a long-term trust created to pass wealth from generation to
generation within a family without incurring transfer taxes (such as the gift or estate tax) for as long as the trust has assets.
Investopedia, Dynasty Trust, https://www.investopedia.com/terms/d/dynasty-trust.asp (last visited Feb. 21, 2022).
45
A purpose trust is enforceable by a person appointed in the trust’s terms or, if no person is so appointed, by a court-appointed
person. Contrast the enforceability period of a purpose trust with that of a charitable trust, which may be enforced in perpetuity. Ss.
689.225(5)(e) and 736.0409(1) and (2), F.S.
46
S. 736.0409(3), F.S.
47
S. 736.0409(1) and (2), F.S.
48
26 U.S.C. §§ 673a, 674a, 675, 676a, and 677a (2022).
49
The Florida Coalition for Modern Laws (“FCML”), White Paper (2019). STORAGE NAME: h1001e.JDC PAGE: 8
DATE: 2/22/2022
on his or her individual income tax return and must pay any taxes on the grantor trust’s income even if
the grantor has no beneficial interest
50
in the trust.
51
Where a grantor is unable or unwilling to bear the
grantor trust’s income tax burden, the trust may be converted into a non-grantor trust so that the trust or
its beneficiaries bear the tax burden.
52
However, a conversion is not always desirable, as the
conversion may make the trust ineligible to own stock in an S corporation
53
or to qualify for a federal
capital gains tax exclusion
54
on the sale of the grantor’s primary residence.
55
Alternatively, except as otherwise provided under a trust’s terms or as prohibited by law, if all or any
portion of a trust is being treated as a grantor trust, the trustee may, in the trustee’s sole discretion,
reimburse the grantor for any amount of the person’s federal, state, or other income tax liability
attributable to the inclusion of the trust’s income, capital gains, deductions, or credits in the calculation
of the grantor’s taxable income (“reimbursement provision”).
56
The reimbursement provision applies to
all trusts, whether created on, before, or after July 1, 2020, unless:
The trustee provides written notification that the trustee intends to irrevocably elect out of the
reimbursement provisions, at least 60 days before the effective date of such election, to the
grantor and all persons who have the ability to remove and replace the trustee.
57
Applying the provisions would prevent a contribution to the trust from qualifying for, or would
reduce, a federal tax benefit, which was originally claimed or could have been claimed for the
contribution.
58
Effect of Proposed Changes
The bill amends s. 736.08145, F.S., to limit the application of the reimbursement provision to trusts that
are governed by Florida law or have a principal place of administration in Florida, whether created on,
before, or after July 1, 2020, unless a pre-existing exception, noted above, applies. This clarifies for a
trust the circumstances under which the trustee’s reimbursement provision authority applies.
Effective Date
The bill provides an effective date of July 1, 2022.
B. SECTION DIRECTORY:
Section 1: Amends s. 689.225, F.S., relating to statutory rule against perpetuities.
Section 2: Amends s. 736.0105, F.S., relating to default and mandatory rules.
Section 3: Amends s. 736.0109, F.S., relating to methods and waiver of notice.
Section 4: Amends s. 736.0303, F.S., relating to representation by fiduciaries and parents.
Section 5: Amends s. 736.0409, F.S., relating to noncharitable trust without ascertainable beneficiary.
Section 6: Amends s. 736.0813, F.S., relating to duty to inform and account.
Section 7: Amends s. 736.08135, F.S., relating to trust accountings.
Section 8: Amends s. 736.08145, F.S., relating to grantor trust reimbursement.
Section 9: Provides an effective date of July 1, 2022.
50
A “beneficial interest” is the right of a party to some profit, distribution, or benefit from a contract or trust. Legal Information Institute,
Beneficial Interest, https://www.law.cornell.edu/wex/beneficial_interest (last visited Feb. 21, 2022).
51
26 U.S.C. § 671 (2020).
52
FCML, supra note 40.
53
An “S corporation” is a corporation that qualifies and elects to be an S corporation under the Internal Revenue Code. S Corporations
typically do not pay taxes to the federal government. Instead, most S corporations are taxed indirectly through their shareholders. An S
corporation must have a limited number of shareholders, giving rise to the statutory term “small business” or “S” corporation. Legal
Information Institute, S Corporation, https://www.law.cornell.edu/wex/s_corporation (last visited Feb. 21, 2022).
54
Capital gains are the profit on the sale of a capital asset, such as stock or real estate. If a person sells a primary residence, current
tax law lets the seller exclude $250,000 in profit from capital gains tax. A couple can exclude $500,000. Legal Information Institute,
Capital Gains, https://www.law.cornell.edu/wex/capital_gains (last visited Feb. 21, 2022).
55
FCML, supra note 40.
56
A trustee may not exercise the reimbursement provision right if the trustee is: treated as the grantor; a trust beneficiary; or a related
or subordinate party with respect to the grantor. Further, if a trust’s terms require the trustee to act at the direction or with the consent of
a trust advisor, the reimbursement right must instead or also be granted to the trust advisor. S. 736.08145(1), (3), and (4), F.S.
57
S. 736.08145(2)(a), F.S.
58
S. 736.08145(2)(b), F.S. STORAGE NAME: h1001e.JDC PAGE: 9
DATE: 2/22/2022
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may have a positive indeterminate fiscal impact on state government by attracting additional
trusts to Florida and helping to retain trust assets and related business. This may result in an
increased number of trusts and related business subject to taxation in this state.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a direct economic impact on the private sector by:
Providing additional time in which a trust may vest or be enforced before it is rendered invalid.
Reducing costs associated with providing trust information to certain qualified trust beneficiaries
where the election to provide a financial statement in lieu of a trust accounting is made.
Allowing the parents of a minor or unborn child to bind such child’s minor or unborn children in
certain circumstances, thereby facilitating trust administration without the need for court
intervention.
Reducing the potential for litigation over the application of a trustee’s reimbursement provision
authority to a particular trust.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
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DATE: 2/22/2022
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On February 7, 2022, the Insurance & Banking Subcommittee adopted one amendment and reported the
bill favorably as a committee substitute. The amendment:
Limited application of the following portions of the bill to family trust companies:
o Permitting a trustee to provide a specified financial statement in lieu of an annual trust
accounting when not otherwise prohibited by the trust’s terms.
o Permitting a trustee to embed a notice or document in a secure attachment or hyperlink in
an email rather than requiring that such information be contained in the body of the e-mail
itself.
Made technical and conforming changes.
On February 21, 2022, the Judiciary Committee adopted one amendment and reported the bill favorably as
a committee substitute. The amendment clarified that:
Where a family trust company serving as trustee sends a notice or document by an e-mail
containing an attachment or hyperlink, such method of sending the notice or document is
permissible under s. 736.0109, F.S.
The provision relating to a trust’s terms authorizing accounting only at specified times applies to all
trustees of a trust managed by a family trust company, not just the family trust company itself.
A financial statement summarizing a trust’s financial information may be utilized by a trust for which
a family trust company is a trustee.
This analysis is drafted to the committee substitute as passed by the Judiciary Committee.