Bill Text: FL S0358 | 2020 | Regular Session | Comm Sub

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Bill Title: Decedents' Property

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2020-03-10 - Laid on Table, refer to CS/HB 505 [S0358 Detail]

Download: Florida-2020-S0358-Comm_Sub.html

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       Florida Senate - 2020                              CS for SB 358
       
       
        
       By the Committee on Judiciary; and Senator Berman
       
       
       
       
       
       590-01177-20                                           2020358c1
    1                        A bill to be entitled                      
    2         An act relating to estates and trusts; creating s.
    3         731.1065, F.S.; specifying that precious metals are
    4         tangible personal property for the purposes of the
    5         Florida Probate Code; providing for retroactive
    6         application; amending s. 731.201, F.S.; revising the
    7         definition of the term “property”; amending s.
    8         731.301, F.S.; specifying that formal notice is not
    9         sufficient to invoke a court’s personal jurisdiction
   10         over a person receiving such formal notice; providing
   11         applicability; amending s. 733.212, F.S.; revising the
   12         required contents of a notice of administration;
   13         amending s. 733.610, F.S.; expanding the list of sales
   14         or encumbrances that are voidable by interested
   15         persons under certain circumstances; amending s.
   16         733.612, F.S.; revising the types of claims and
   17         proceedings a personal representative may properly
   18         prosecute or defend; amending s. 733.617, F.S.;
   19         specifying that certain attorneys and persons are not
   20         entitled to compensation for serving as a personal
   21         representative unless the attorney or person is
   22         related to the testator or unless certain disclosures
   23         are made before a will is executed; requiring the
   24         testator to execute a written statement that
   25         acknowledges that certain disclosures were made;
   26         providing requirements for the written statement;
   27         specifying when an attorney is deemed to have prepared
   28         or supervised the execution of a will; specifying how
   29         a person may be related to an individual; specifying
   30         when an attorney or a person related to the attorney
   31         is deemed to have been nominated in a will; providing
   32         construction; providing applicability; amending s.
   33         736.0708, F.S.; specifying that certain attorneys and
   34         persons are not entitled to compensation for serving
   35         as a trustee unless the attorney or person is related
   36         to the settlor or unless certain disclosures are made
   37         before the trust instrument is executed; requiring a
   38         settlor to execute a written statement that
   39         acknowledges that certain disclosures were made;
   40         providing requirements for the written statement;
   41         specifying when an attorney is deemed to have prepared
   42         or supervised the execution of a trust instrument;
   43         specifying how a person may be related to an
   44         individual; specifying when an attorney or a person
   45         related to the attorney is deemed appointed in a trust
   46         instrument; providing construction; providing
   47         applicability; providing effective dates.
   48          
   49  Be It Enacted by the Legislature of the State of Florida:
   50  
   51         Section 1. Effective July 1, 2020, section 731.1065,
   52  Florida Statutes, is created to read:
   53         731.1065 Precious metals.—
   54         (1) For the purposes of the code, precious metals in any
   55  tangible form, such as bullion or coins kept and acquired for
   56  their historical, artistic, collectable, or investment value
   57  apart from their normal use as legal tender for payment, are
   58  tangible personal property.
   59         (2) This section is intended to clarify existing law and
   60  applies retroactively to all written instruments executed
   61  before, on, or after July 1, 2020, as well as all proceedings
   62  pending or commenced before, on, or after July 1, 2020, in which
   63  the disposition of precious metals in any tangible form has not
   64  been finally determined.
   65         Section 2. Subsection (32) of section 731.201, Florida
   66  Statutes, is amended to read:
   67         731.201 General definitions.—Subject to additional
   68  definitions in subsequent chapters that are applicable to
   69  specific chapters or parts, and unless the context otherwise
   70  requires, in this code, in s. 409.9101, and in chapters 736,
   71  738, 739, and 744, the term:
   72         (32) “Property” means both real and personal property or
   73  any interest in it and anything that may be the subject of
   74  ownership, including causes of action of the estate and causes
   75  of action the decedent had at the time of death.
   76         Section 3. Effective upon this act becoming a law,
   77  subsection (2) of section 731.301, Florida Statutes, is amended
   78  to read:
   79         731.301 Notice.—
   80         (2) In a probate proceeding, formal notice to a person is
   81  sufficient notice for the court to exercise its in rem to
   82  acquire jurisdiction over the person receiving formal notice to
   83  the extent of the person’s interest in the estate property or in
   84  the decedent’s protected homestead. The court does not acquire
   85  personal jurisdiction over a person by service of formal notice.
   86         Section 4. The amendment made by this act to s. 731.301,
   87  Florida Statutes, applies to all proceedings pending on or
   88  before, or commenced after, the date this act becomes a law.
   89         Section 5. Paragraph (e) of subsection (2) of section
   90  733.212, Florida Statutes, is amended, and paragraph (f) is
   91  added to that subsection, to read:
   92         733.212 Notice of administration; filing of objections.—
   93         (2) The notice shall state:
   94         (e) That, unless an extension is granted pursuant to s.
   95  732.2135(2), an election to take an elective share must be filed
   96  on or before the earlier of the date that is 6 months after the
   97  date of service of a copy of the notice of administration on the
   98  surviving spouse, or an attorney in fact or a guardian of the
   99  property of the surviving spouse, or the date that is 2 years
  100  after the date of the decedent’s death.
  101         (f) That, under certain circumstances and by failing to
  102  contest the will, the recipient of the notice of administration
  103  may be waiving his or her right to contest the validity of a
  104  trust or other writing incorporated by reference into a will.
  105         Section 6. Effective July 1, 2020, section 733.610, Florida
  106  Statutes, is amended to read:
  107         733.610 Sale, encumbrance, or transaction involving
  108  conflict of interest.—Any sale or encumbrance to the personal
  109  representative or the personal representative’s spouse, agent,
  110  or attorney, or any corporation, other entity, or trust in which
  111  the personal representative, or the personal representative’s
  112  spouse, agent, or attorney, has a substantial beneficial or
  113  ownership interest, or any transaction that is affected by a
  114  conflict of interest on the part of the personal representative,
  115  is voidable by any interested person except one who has
  116  consented after fair disclosure, unless:
  117         (1) The will or a contract entered into by the decedent
  118  expressly authorized the transaction; or
  119         (2) The transaction is approved by the court after notice
  120  to interested persons.
  121         Section 7. Subsection (20) of section 733.612, Florida
  122  Statutes, is amended to read:
  123         733.612 Transactions authorized for the personal
  124  representative; exceptions.—Except as otherwise provided by the
  125  will or court order, and subject to the priorities stated in s.
  126  733.805, without court order, a personal representative, acting
  127  reasonably for the benefit of the interested persons, may
  128  properly:
  129         (20) Prosecute or defend claims or proceedings in any
  130  jurisdiction for the protection of the estate, of the decedent’s
  131  property, and of the personal representative.
  132         Section 8. Subsection (6) of section 733.617, Florida
  133  Statutes, is amended, and subsection (8) is added to that
  134  section, to read:
  135         733.617 Compensation of personal representative.—
  136         (6) Except as otherwise provided in this section, if the
  137  personal representative is a member of The Florida Bar and has
  138  rendered legal services in connection with the administration of
  139  the estate, then in addition to a fee as personal
  140  representative, there also shall be allowed a fee for the legal
  141  services rendered.
  142         (8)(a) An attorney serving as a personal representative, or
  143  a person related to the attorney, is not entitled to
  144  compensation for serving as a personal representative if the
  145  attorney prepared or supervised the execution of the will that
  146  nominated the attorney or person related to the attorney as
  147  personal representative, unless the attorney or person nominated
  148  is related to the testator, or the attorney makes the following
  149  disclosures to the testator before the will is executed:
  150         1. Subject to certain statutory limitations, most family
  151  members, regardless of their residence, and any other persons
  152  who are residents of Florida, including friends and corporate
  153  fiduciaries, are eligible to serve as a personal representative;
  154         2. Any person, including an attorney, who serves as a
  155  personal representative is entitled to receive reasonable
  156  compensation for serving as a personal representative; and
  157         3. Compensation payable to the personal representative is
  158  in addition to any attorney fees payable to the attorney or the
  159  attorney’s firm for legal services rendered to the personal
  160  representative.
  161         (b)1. The testator must execute a written statement
  162  acknowledging that the disclosures required under paragraph (a)
  163  were made prior to the execution of the will. The written
  164  statement must be in a separate writing from the will but may be
  165  annexed to the will. The written statement may be executed
  166  before or after the execution of the will in which the attorney
  167  or related person is nominated as the personal representative.
  168         2. The written statement must be in substantially the
  169  following form:
  170  
  171         I, ...(Name)..., declare that:
  172  
  173         I have designated my attorney, an attorney employed in the
  174  same law firm as my attorney, or a person related to my attorney
  175  as a nominated personal representative in my will or codicil
  176  dated ...(insert date)....
  177  
  178         Before executing the will or codicil, I was informed that:
  179         1. Subject to certain statutory limitations, most family
  180  members, regardless of their residence, and any other
  181  individuals who are residents of Florida, including friends and
  182  corporate fiduciaries, are eligible to serve as a personal
  183  representative.
  184         2. Any person, including an attorney, who serves as a
  185  personal representative is entitled to receive reasonable
  186  compensation for serving as a personal representative.
  187         3. Compensation payable to the personal representative is
  188  in addition to any attorney fees payable to the attorney or the
  189  attorney’s firm for legal services rendered to the personal
  190  representative.
  191  
  192  ...(Signature)...
  193  ...(Testator)...
  194  ...(Insert date)...
  195  
  196         (c) For purposes of this subsection:
  197         1. An attorney is deemed to have prepared or supervised the
  198  execution of a will if the preparation or supervision of the
  199  execution of the will was performed by an employee or attorney
  200  employed by the same firm as the attorney at the time the will
  201  was executed.
  202         2. A person is “related” to an individual if, at the time
  203  the attorney prepared or supervised the execution of the will,
  204  the person is:
  205         a. A spouse of the individual;
  206         b. A lineal ascendant or descendant of the individual;
  207         c. A sibling of the individual;
  208         d. A relative of the individual or of the individual’s
  209  spouse with whom the attorney maintains a close, familial
  210  relationship;
  211         e. A spouse of a person described in sub-subparagraphs b.
  212  d.;
  213         f. A person who cohabitates with the individual; or
  214         g. An employee or attorney employed by the same firm as the
  215  attorney at the time the will is executed.
  216         3. An attorney or a person related to the attorney is
  217  deemed to have been nominated in the will when the will
  218  nominates the attorney or the person related to the attorney as
  219  personal representative, co-personal representative, successor,
  220  or alternate personal representative in the event another person
  221  nominated is unable to or unwilling to serve, or provides the
  222  attorney or any person related to the attorney with the power to
  223  nominate the personal representative and the attorney or person
  224  related to the attorney was nominated using that power.
  225         (d) Other than compensation payable to the personal
  226  representative, this subsection does not limit any rights or
  227  remedies that any interested person may have at law or in
  228  equity.
  229         (e) The failure to obtain an acknowledgment from the
  230  testator under this subsection does not disqualify a personal
  231  representative from serving and does not affect the validity of
  232  a will.
  233         (f) This subsection applies to all nominations made
  234  pursuant to a will:
  235         1. Executed by a resident of this state on or after October
  236  1, 2020; or
  237         2. Republished by a resident of this state on or after
  238  October 1, 2020, if the republished will nominates the attorney
  239  who prepared or supervised the execution of the instrument that
  240  republished the will, or a person related to such attorney, as
  241  personal representative.
  242         Section 9. Subsection (4) is added to section 736.0708,
  243  Florida Statutes, to read:
  244         736.0708 Compensation of trustee.—
  245         (4)(a) An attorney serving as a trustee, or a person
  246  related to such attorney, is not entitled to compensation for
  247  serving as a trustee if the attorney prepared or supervised the
  248  execution of the trust instrument that appointed the attorney or
  249  person related to the attorney as trustee, unless the attorney
  250  or person appointed is related to the settlor or the attorney
  251  makes the following disclosures to the settlor before the trust
  252  instrument is executed:
  253         1. Unless specifically disqualified by the terms of the
  254  trust instrument, any person, regardless of state of residence
  255  and including a family member, friend, or corporate fiduciary,
  256  is eligible to serve as a trustee;
  257         2. Any person, including an attorney, who serves as a
  258  trustee is entitled to receive reasonable compensation for
  259  serving as trustee; and
  260         3. Compensation payable to the trustee is in addition to
  261  any attorney fees payable to the attorney or the attorney’s firm
  262  for legal services rendered to the trustee.
  263         (b)1. The settlor must execute a written statement
  264  acknowledging that the disclosures required under paragraph (a)
  265  were made prior to the execution of the trust instrument. The
  266  written statement must be in a separate writing from the trust
  267  instrument but may be annexed to the trust instrument. The
  268  written statement may be executed before or after the execution
  269  of the trust in which the attorney or related person is
  270  appointed as the trustee.
  271         2. The written statement must be in substantially the
  272  following form:
  273  
  274         I, ...(Name)..., declare that:
  275  
  276         I have designated my attorney, an attorney employed in the
  277  same law firm as my attorney, or a person related to my attorney
  278  as a trustee in my trust instrument dated ...(insert date)....
  279  
  280         Before executing the trust, I was informed that:
  281         1. Unless specifically disqualified by the terms of the
  282  trust instrument, any person, regardless of state of residence
  283  and including family members, friends, and corporate
  284  fiduciaries, is eligible to serve as a trustee.
  285         2. Any person, including an attorney, who serves as a
  286  trustee is entitled to receive reasonable compensation for
  287  serving as trustee.
  288         3. Compensation payable to the trustee is in addition to
  289  any attorney fees payable to the attorney or the attorney’s firm
  290  for legal services rendered to the trustee.
  291  
  292  ...(Signature)...
  293  ...(Settlor)...
  294  ...(Insert Date)...
  295  
  296         (c) For purposes of this subsection:
  297         1. An attorney is deemed to have prepared, or supervised
  298  the execution of, a trust instrument if the preparation, or
  299  supervision of the execution, of the trust instrument was
  300  performed by an employee or attorney employed by the same firm
  301  as the attorney at the time the trust instrument was executed.
  302         2. A person is “related” to an individual if, at the time
  303  the attorney prepared or supervised the execution of the trust
  304  instrument, the person is:
  305         a. A spouse of the individual;
  306         b. A lineal ascendant or descendant of the individual;
  307         c. A sibling of the individual;
  308         d. A relative of the individual or of the individual’s
  309  spouse with whom the attorney maintains a close, familial
  310  relationship;
  311         e. A spouse of a person described in sub-subparagraphs b.
  312  d.;
  313         f. A person who cohabitates with the individual; or
  314         g. An employee or attorney employed by the same firm as the
  315  attorney at the time the trust instrument is executed.
  316         3. An attorney or a person related to the attorney is
  317  deemed appointed in the trust instrument when the trust
  318  instrument appoints the attorney or the person related to the
  319  attorney as trustee, co-trustee, successor, or alternate trustee
  320  in the event another person nominated is unable to or unwilling
  321  to serve, or provides the attorney or any person related to the
  322  attorney with the power to appoint the trustee and the attorney
  323  or person related to the attorney was appointed using that
  324  power.
  325         (d) Other than compensation payable to the trustee, this
  326  subsection does not limit any rights or remedies that any
  327  interested person may have at law or equity.
  328         (e) The failure to obtain an acknowledgment from the
  329  settlor under this subsection does not disqualify a trustee from
  330  serving and does not affect the validity of a trust instrument.
  331         (f) This subsection applies to all appointments made
  332  pursuant to a trust agreement:
  333         1. Executed by a resident of this state on or after October
  334  1, 2020; or
  335         2. Amended by a resident of this state on or after October
  336  1, 2020, if the trust agreement nominates the attorney who
  337  prepared or supervised the execution of the amendment or a
  338  person related to such attorney as trustee.
  339         Section 10. Except as otherwise expressly provided in this
  340  act and except for this section, which shall take effect upon
  341  this act becoming a law, this act shall take effect October 1,
  342  2020.