Florida Senate - 2022 SB 1368 By Senator Gruters 23-00531C-22 20221368__ 1 A bill to be entitled 2 An act relating to trusts; amending s. 689.225, F.S.; 3 revising criteria for application of the rule against 4 perpetuities to trusts created on or after a specified 5 date; amending s. 736.0105, F.S.; specifying that the 6 terms of a trust do not prevail over a trustees duty 7 to account to qualified beneficiaries upon termination 8 of the trust; providing construction; amending s. 9 736.0109, F.S.; clarifying circumstances under which 10 notice, or the sending of a document, to a person 11 under the Florida Trust Code is deemed satisfied; 12 amending s. 736.0303, F.S.; specifying circumstances 13 under which a parent may represent and bind the unborn 14 descendants of his or her unborn child or the minor or 15 unborn descendants of his or her minor child; amending 16 s. 736.0409, F.S.; revising the timeframe for which 17 certain noncharitable trusts may be enforced; amending 18 s. 736.08135, F.S.; providing an alternate procedure 19 for trust accountings for trustees under certain 20 circumstances; specifying requirements and 21 applicability; amending s. 736.08145, F.S.; clarifying 22 the application of law governing grantor trust 23 reimbursement; providing an effective date. 24 25 Be It Enacted by the Legislature of the State of Florida: 26 27 Section 1.Paragraph (f) of subsection (2) of section 28 689.225, Florida Statutes, is amended, and paragraph (g) is 29 added to that subsection, to read: 30 689.225Statutory rule against perpetuities. 31 (2)STATEMENT OF THE RULE. 32 (f)As to any trust created after December 31, 2000, 33 through June 30, 2022, this section shall apply to a nonvested 34 property interest or power of appointment contained in a trust 35 by substituting 360 years in place of 90 years in each place 36 such term appears in this section unless the terms of the trust 37 require that all beneficial interests in the trust vest or 38 terminate within a lesser period. 39 (g)As to any trust created on or after July 1, 2022, this 40 section shall apply to a nonvested property interest or power of 41 appointment contained in a trust by substituting 1,000 years in 42 place of 90 years in each place such term appears in this 43 section unless the terms of the trust require that all 44 beneficial interests in the trust vest or terminate within a 45 lesser period. 46 Section 2.Paragraph (s) of subsection (2) of section 47 736.0105, Florida Statutes, is amended to read: 48 736.0105Default and mandatory rules. 49 (2)The terms of a trust prevail over any provision of this 50 code except: 51 (s)The duty under s. 736.0813(1)(c) and (d) to provide a 52 complete copy of the trust instrument and to account to 53 qualified beneficiaries on termination of the trust. However, 54 this paragraph may not be construed to: 55 1.Prevent a trustee from voluntarily accounting to 56 qualified beneficiaries of the trust annually or at other times 57 selected by the trustee; or 58 2.Relieve a trustee from the duty to account to the 59 qualified beneficiaries annually or at less frequent intervals. 60 Section 3.Subsections (1) and (4) of section 736.0109, 61 Florida Statutes, are amended to read: 62 736.0109Methods and waiver of notice. 63 (1)Notice to a person under this code or the sending of a 64 document to a person under this code must be accomplished in a 65 manner reasonably suitable under the circumstances and likely to 66 result in receipt of the notice or document. Permissible methods 67 of notice or for sending a document include first-class mail, 68 personal delivery, delivery to the persons last known place of 69 residence or place of business, a properly directed facsimile or 70 other electronic message including, but not limited to, e-mail, 71 or posting on a secure electronic account or website in 72 accordance with subsection (3). A properly directed e-mail 73 message with an attached notice or document or an included 74 hyperlink through which the recipient can view a notice or 75 document is a permissible method of notice, regardless of 76 whether compliance with subsection (3) is achieved, provided 77 that to the extent access to such attachment or hyperlink 78 requires a username, password, or other specific instructions, 79 the username, password, or other specific instructions are 80 communicated to the recipient of the notice either 81 contemporaneously or upon request. 82 (4)Notice to a person under this code, or the sending of a 83 document to a person under this code by electronic message, 84 including e-mail with an attached notice or document or an 85 included hyperlink through which the recipient can access the 86 notice or document, is complete when the notice or document is 87 sent. 88 (a)An electronic message is presumed received on the date 89 that the message is sent. 90 (b)If the sender has knowledge that an electronic message 91 did not reach the recipient, the electronic message is deemed to 92 have not been received. The sender has the burden to prove that 93 another copy of the notice or document was sent by electronic 94 message or by other means authorized by this section. 95 Section 4.Subsection (5) of section 736.0303, Florida 96 Statutes, is amended to read: 97 736.0303Representation by fiduciaries and parents.To the 98 extent there is no conflict of interest between the 99 representative and the person represented or among those being 100 represented with respect to a particular question or dispute: 101 (5)A parent may represent and bind the parents unborn 102 child and the unborn descendants of that unborn child, or the 103 parents minor child and the minor or unborn descendants of the 104 minor child, if a guardian of the property for the unborn child, 105 minor child, or their descendants has not been appointed. 106 Section 5.Subsection (1) of section 736.0409, Florida 107 Statutes, is amended to read: 108 736.0409Noncharitable trust without ascertainable 109 beneficiary.Except as otherwise provided in s. 736.0408 or by 110 another provision of law, the following rules apply: 111 (1)A trust may be created for a noncharitable purpose 112 without a definite or definitely ascertainable beneficiary or 113 for a noncharitable but otherwise valid purpose to be selected 114 by the trustee. The trust may not be enforced for more than 115 1,000 21 years. 116 Section 6.Present subsection (3) of section 736.08135, 117 Florida Statutes, is redesignated as subsection (4) and amended, 118 and a new subsection (3) is added to that section, to read: 119 736.08135Trust accountings. 120 (3)Notwithstanding subsections (1) and (2), a trustee may 121 elect, for any accounting period, to provide a statement to any 122 beneficiary which indicates that the trustee has made such an 123 election for that period and which includes the following: 124 (a)The information required by paragraph (2)(a) and, if 125 applicable, the information required by paragraph (2)(f); and 126 (b)A financial statement for the trust prepared by a 127 certified public accountant which summarizes the information 128 specified in paragraphs (2)(b)-(e), provided that such financial 129 statement contains sufficient information to put the beneficiary 130 on notice of the trusts comprehensive assets and liabilities as 131 well as of the transactions occurring during the accounting 132 period. For example, the financial statement may report the 133 aggregate amounts of all cash and property transactions, gains, 134 losses, receipts, expenses, disbursements, accruals, or 135 allowances occurring within the accounting period for each such 136 category rather than report each individual transaction or 137 accounting item as a separate entry. 138 139 For purposes of this chapter, a statement that a trustee 140 provides to a beneficiary of the trust pursuant to this 141 subsection is deemed to be a trust accounting that adequately 142 discloses the information required in subsection (2). Any 143 trustee that makes the election provided in this subsection 144 shall, upon request of any beneficiary of the trust within the 145 limitations period under s. 736.1008, make available the 146 detailed information necessary for preparation of the statement 147 to the beneficiary within 30 days after such request. 148 (4)(3)Subsections (1) and (2) govern the form and content 149 of all trust accountings rendered for any accounting periods 150 beginning on or after January 1, 2003, and all trust accountings 151 rendered on or after July 1, 2018. The election provided in 152 subsection (3) for trustees is available for any accounting 153 periods beginning on or after January 1, 2021. This subsection 154 does not affect the beginning period from which a trustee is 155 required to render a trust accounting. 156 Section 7.Subsection (2) of section 736.08145, Florida 157 Statutes, is amended to read: 158 736.08145Grantor trust reimbursement. 159 (2)This section applies to all trusts that are governed by 160 the laws of this state or that have a principal place of 161 administration within this state, whether created on, before, or 162 after July 1, 2020, unless: 163 (a)The trustee provides written notification that the 164 trustee intends to irrevocably elect out of the application of 165 this section, at least 60 days before the effective date of such 166 election, to the person treated as the owner of all or a portion 167 of the trust under s. 671 of the Internal Revenue Code or any 168 similar federal, state, or other tax law and to all persons who 169 have the ability to remove and replace the trustee. 170 (b)Applying this section would prevent a contribution to 171 the trust from qualifying for, or would reduce, a federal tax 172 benefit, including a federal tax exclusion or deduction, which 173 was originally claimed or could have been claimed for the 174 contribution, including: 175 1.An exclusion under s. 2503(b) or s. 2503(c) of the 176 Internal Revenue Code; 177 2.A marital deduction under s. 2056, s. 2056A, or s. 2523 178 of the Internal Revenue Code; 179 3.A charitable deduction under s. 170(a), s. 642(c), s. 180 2055(a), or s. 2522(a) of the Internal Revenue Code; or 181 4.Direct skip treatment under s. 2642(c) of the Internal 182 Revenue Code. 183 Section 8.This act shall take effect July 1, 2022.