Bill Text: FL S0206 | 2017 | Regular Session | Engrossed
Bill Title: Wills and Trusts
Spectrum: Bipartisan Bill
Status: (Vetoed) 2017-04-28 - Laid on Table, companion bill(s) passed, see CS/HB 1379 (Ch. 2017-155) [S0206 Detail]
Download: Florida-2017-S0206-Engrossed.html
CS for CS for CS for SB 206 First Engrossed 2017206e1 1 A bill to be entitled 2 An act relating to wills and trusts; amending s. 3 731.201, F.S.; revising the definition of the term 4 “will” to include electronic wills; amending s. 5 732.506, F.S.; excluding electronic wills from 6 specified methods to revoke a will; creating s. 7 732.521, F.S.; providing a short title; creating s. 8 732.522, F.S.; defining terms; creating s. 732.523, 9 F.S.; specifying requirements that must be satisfied 10 in the execution of electronic wills; creating s. 11 732.524, F.S.; providing requirements for self-proof 12 of electronic wills; creating s. 732.525, F.S.; 13 specifying the circumstances under which a person is 14 deemed to be in the presence of or appearing before 15 another person; providing that an electronic record 16 satisfies the requirement that a record be in writing; 17 providing that an electronic signature satisfies the 18 requirement that a document be signed; providing 19 requirements for certain documents to be deemed 20 executed in this state; creating s. 732.526, F.S.; 21 authorizing an electronic will of a nonresident of 22 this state which is properly executed in this or 23 another state to be offered for and admitted to 24 probate in this state; providing the venue for the 25 probate of such electronic will; creating s. 732.527, 26 F.S.; specifying requirements for service as a 27 qualified custodian; requiring qualified custodians to 28 provide access to or information concerning the 29 electronic will, or the electronic record containing 30 the electronic will, only to specified persons or as 31 directed by a court; authorizing a qualified custodian 32 to destroy the electronic record of an electronic will 33 after a certain date; providing conditions under which 34 a qualified custodian may cease serving as a qualified 35 custodian; requiring a qualified custodian to cease 36 serving in such capacity upon the written request of 37 the testator; requiring that a successor qualified 38 custodian agree in writing to serve in that capacity 39 for an electronic will before succeeding to office; 40 specifying what constitutes an affidavit of a 41 qualified custodian; requiring a qualified custodian 42 to deliver certain documents upon request from the 43 testator; prohibiting a qualified custodian from 44 charging the testator a fee for such documents under 45 certain circumstances; providing that a qualified 46 custodian is liable for certain damages under certain 47 circumstances; prohibiting a qualified custodian from 48 terminating or suspending access to, or downloads of, 49 an electronic will by the testator; requiring a 50 qualified custodian to deposit an electronic will with 51 the court upon receiving information that the testator 52 is dead; prohibiting a qualified custodian from 53 charging a fee for certain actions taken upon the 54 death of the testator; requiring a qualified custodian 55 to keep certain information confidential; amending s. 56 732.528, F.S.; requiring a qualified custodian to post 57 and maintain a blanket surety bond, subject to certain 58 requirements, or to maintain a certain liability 59 insurance policy; authorizing the Attorney General to 60 petition a court for the appointment of a receiver to 61 manage certain records under certain conditions; 62 amending s. 732.901, F.S.; providing that an 63 electronic will that is filed electronically with the 64 clerk is deemed to have been deposited as an original 65 of the electronic will; amending s. 733.201, F.S.; 66 providing for the proof of electronic wills; providing 67 requirements for admitting an electronic will that is 68 not self-proved into probate; providing that a paper 69 copy of an electronic will constitutes an “original” 70 of the electronic will subject to certain conditions; 71 amending s. 736.0103, F.S.; redefining the term 72 “interests of the beneficiaries”; amending s. 73 736.0105, F.S.; deleting a requirement that a trust be 74 for the benefit of the trust’s beneficiaries; amending 75 s. 736.0109, F.S.; revising provisions relating to 76 notice or sending of electronic trust documents; 77 providing requirements for such documents to be deemed 78 sent; requiring a certain authorization to specify 79 documents subject to electronic posting; revising 80 requirements for a recipient to electronically access 81 such documents; prohibiting the termination of a 82 recipient’s electronic access to such documents from 83 invalidating certain notice or sending of electronic 84 trust documents; tolling specified limitations periods 85 under certain circumstances; providing requirements 86 for electronic access to such documents to be deemed 87 terminated by a sender; providing applicability; 88 amending s. 736.0110, F.S.; providing that the 89 Attorney General has standing to assert certain rights 90 in certain proceedings; amending s. 736.0403, F.S.; 91 providing that, for purposes of establishing the 92 validity of the testamentary aspects of a revocable 93 trust, the qualified custodian of the trust instrument 94 may not also be a trustee of the trust; amending s. 95 736.0404, F.S.; deleting a restriction on the purpose 96 for which a trust is created; amending s. 736.04117, 97 F.S.; defining and redefining terms; authorizing an 98 authorized trustee to appoint all or part of the 99 principal of a trust to a second trust under certain 100 circumstances; providing requirements for the second 101 trust and its beneficiaries; providing that the second 102 trust may retain, omit, or create specified powers; 103 authorizing the term of the second trust to extend 104 beyond the term of the first trust; providing 105 requirements for distributions to a second trust when 106 the authorized trustee does not have absolute power; 107 providing requirements for such second trust; 108 providing requirements for grants of power by the 109 second trust; authorizing a second trust created by an 110 authorized trustee without absolute power to grant 111 absolute power to the second trust’s trustee; 112 authorizing an authorized trustee to appoint the 113 principal of a first trust to a supplemental needs 114 trust under certain circumstances; providing 115 requirements for such supplemental needs trust; 116 prohibiting an authorized trustee from distributing 117 the principal of a trust in a manner that would reduce 118 specified tax benefits; prohibiting the distribution 119 of S corporation stock from a first trust to a second 120 trust under certain circumstances; prohibiting a 121 settlor from being treated as the owner of a second 122 trust if he or she was not treated as the owner of the 123 first trust; prohibiting an authorized trustee from 124 distributing a trust’s interest in property to a 125 second trust if it is subject to specified rules of 126 the Internal Revenue Code; prohibiting the exercise of 127 power to invade a trust’s principal to increase an 128 authorized trustee’s compensation or relieve him or 129 her from certain liability; specifying who an 130 authorized trustee must notify when he or she 131 exercises his or her power to invade the trust’s 132 principal; specifying the documents that the 133 authorized trustee must provide with such notice; 134 amending s. 736.0708, F.S.; providing that a cotrustee 135 is entitled to reasonable compensation when the trust 136 does not specify compensation; providing that 137 reasonable compensation may be greater for multiple 138 trustees than for a single trustee; amending s. 139 736.08135, F.S.; revising applicability; amending s. 140 736.1008, F.S.; clarifying that certain knowledge by a 141 beneficiary does not cause a claim to accrue for 142 breach of trust or commence the running of a period of 143 limitations or laches; providing legislative intent; 144 providing for retroactive application; amending s. 145 736.1201, F.S.; defining the term “delivery of 146 notice”; conforming a provision to changes made by the 147 act; amending s. 736.1205, F.S.; requiring an 148 authorized trustee to provide certain notice to the 149 Attorney General rather than the state attorney; 150 providing applicability; amending ss. 736.1206, 151 736.1207, 736.1208, and 736.1209, F.S.; conforming 152 provisions to changes made by the act; providing 153 effective dates. 154 155 Be It Enacted by the Legislature of the State of Florida: 156 157 Section 1. Subsection (40) of section 731.201, Florida 158 Statutes, is amended to read: 159 731.201 General definitions.—Subject to additional 160 definitions in subsequent chapters that are applicable to 161 specific chapters or parts, and unless the context otherwise 162 requires, in this code, in s. 409.9101, and in chapters 736, 163 738, 739, and 744, the term: 164 (40) “Will” means an instrument, including a codicil, 165 executed by a person in the manner prescribed by this code, 166 which disposes of the person’s property on or after his or her 167 death and includes an instrument which merely appoints a 168 personal representative or revokes or revises another will. The 169 term “will” includes an electronic will as defined in s. 170 732.522. 171 Section 2. Section 732.506, Florida Statutes, is amended to 172 read: 173 732.506 Revocation by act.—A will or codicil, other than an 174 electronic will, is revoked by the testator, or some other 175 person in the testator’s presence and at the testator’s 176 direction, by burning, tearing, canceling, defacing, 177 obliterating, or destroying it with the intent, and for the 178 purpose, of revocation. 179 Section 3. Section 732.521, Florida Statutes, is created to 180 read: 181 732.521 Short title.—Sections 732.521-732.527 may be cited 182 as the “Florida Electronic Wills Act.” 183 Section 4. Section 732.522, Florida Statutes, is created to 184 read: 185 732.522 Definitions.—As used in ss. 732.521-732.527, the 186 term: 187 (1) “Electronic record” means a record created, generated, 188 sent, communicated, received, or stored by electronic means. 189 (2) “Electronic signature” means an electronic mark visibly 190 manifested in a record as a signature and executed or adopted by 191 a person with the intent to sign the record. 192 (3) “Electronic will” means a will, including a codicil, 193 executed in accordance with s. 732.523 by a person in the manner 194 prescribed by this act, which disposes of the person’s property 195 on or after his or her death and includes an instrument that 196 appoints a personal representative or revokes or revises another 197 will or electronic will. 198 (4) “Qualified custodian” means a person who meets the 199 requirements of s. 732.527(1). 200 Section 5. Section 732.523, Florida Statutes, is created to 201 read: 202 732.523 Electronic wills.—Notwithstanding s. 732.502: 203 (1) An electronic will must meet all of the following 204 requirements: 205 (a) Exist in an electronic record that is unique and 206 identifiable. 207 (b) Be electronically signed by the testator in the 208 presence of at least two attesting witnesses. 209 (c) Be electronically signed by the attesting witnesses in 210 the presence of the testator and in the presence of each other. 211 (2) Except as otherwise provided in this act, all questions 212 as to the force, effect, validity, and interpretation of an 213 electronic will that complies with this section must be 214 determined in the same manner as in the case of a will executed 215 in accordance with s. 732.502. 216 Section 6. Section 732.524, Florida Statutes, is created to 217 read: 218 732.524 Self-proof of electronic will.—An electronic will 219 is self-proved if all of the following requirements are met: 220 (1) The electronic will is executed in conformity with this 221 act. 222 (2) The acknowledgment of the electronic will by the 223 testator and the affidavits of the witnesses are made in 224 accordance with s. 732.503 and are part of the electronic record 225 containing the electronic will, or are attached to, or are 226 logically associated with, the electronic will. 227 (3)(a) The electronic will designates a qualified 228 custodian; 229 (b) The electronic record that contains the electronic will 230 is held in the custody of a qualified custodian at all times 231 before being offered to the court for probate; and 232 (c) The qualified custodian who has custody of the 233 electronic will at the time of the testator’s death: 234 1. Certifies under oath that, to the best knowledge of the 235 qualified custodian, the electronic record that contains the 236 electronic will was at all times before being offered to the 237 court in the custody of a qualified custodian in compliance with 238 s. 732.527 and that the electronic will has not been altered in 239 any way since the date of its execution; and 240 2. If the execution of the electronic will included the use 241 of video conference under s. 732.525(1)(b), certifies under oath 242 that the audio and video recording required under s. 243 732.525(1)(b)9. is in the qualified custodian’s custody in the 244 electronic record that contains the electronic will and is 245 available for inspection by the court. 246 Section 7. Section 732.525, Florida Statutes, is created to 247 read: 248 732.525 Method and place of execution.—For purposes of this 249 act, the execution and filing of a document with the court as 250 provided in this act, s. 732.503, or the Florida Probate Rules; 251 the execution of a living will under s. 765.302; and the 252 acknowledgment of any of the foregoing: 253 (1) An individual is deemed to be in the presence of or 254 appearing before another individual if the individuals are 255 either: 256 (a) In the same physical location; or 257 (b) In different physical locations, but can communicate 258 with each other by means of live video conference, if the 259 following requirements are met: 260 1. The testator or principal may not be in an end-stage 261 condition as defined in s. 765.101 or a vulnerable adult as 262 defined in s. 415.102. The contestant of the document has the 263 burden of proving that the testator or principal was in an end 264 stage condition or was a vulnerable adult at the time of 265 executing the document. 266 2. The signal transmission must be live and in real time. 267 3. The signal transmission must be secure from interception 268 through lawful means by anyone other than the persons 269 communicating. 270 4. The persons communicating must simultaneously see and 271 speak to one another with reasonable clarity. 272 5. In the video conference, the persons communicating must 273 establish the identity of the testator or principal by: 274 a. Personal knowledge, if the person asserting personal 275 knowledge explains how the identity of the testator or principal 276 has come to be known to, and the length of time for which it has 277 been known by, such person; or 278 b. Presentation of any of the forms of identification of 279 the testator or principal, as set forth in s. 117.05(5)(b)2.a. 280 i. 281 6. In the video conference, the persons communicating must 282 demonstrate awareness of the events taking place, which may be 283 achieved, without limitation, by stating their names and 284 identifying any document they intend to sign. 285 7. At least one of the persons communicating must be 286 either: 287 a. An attorney licensed to practice law in this state: 288 (I) Who electronically signs the document as a witness; 289 (II) Whose status as an attorney licensed to practice law 290 in this state is indicated adjacent to his or her electronic 291 signature; and 292 (III) Whose electronic signature is accompanied by his or 293 her statement that, to the best of his or her knowledge, the 294 execution of the document complied with the requirements of this 295 section; or 296 b. A Florida notary public: 297 (I) Who electronically signs the document; 298 (II) Whose electronic signature is accompanied by a notary 299 public seal that meets the requirements of s. 117.021(3); and 300 (III) Whose electronic signature and seal are accompanied 301 by his or her certification that, to the best of his or her 302 knowledge, the execution of the document complied with the 303 requirements of this section. 304 305 If a document is required to be witnessed or acknowledged, the 306 witness or notary fulfilling that requirement may be the same 307 witness or notary who fulfills the requirement of this 308 subparagraph. A person presented with a document containing the 309 statement or certification required under this subparagraph may 310 presume that the document was executed in compliance with this 311 paragraph, unless the person has notice that such compliance is 312 contested. 313 8. In the video conference, the testator or principal must 314 provide verbal answers to all of the following questions: 315 a. Are you over the age of 18? 316 b. Are you under the influence of any drugs or alcohol that 317 impairs your ability to make decisions? 318 c. Are you of sound mind? 319 d. Did anyone assist you in accessing this video 320 conference? If so, who? 321 e. Has anyone forced or influenced you to include anything 322 in this document which you do not wish to include? 323 f. Are you signing this document voluntarily? 324 9. A time-stamped recording of the entire video conference 325 must be identifiable with the document being signed and stored 326 in the electronic record containing the document by a qualified 327 custodian in the manner required pursuant to s. 732.527(1)(c) 328 for the storage of electronic records containing electronic 329 wills. 330 a. Without limitation, a recording is identifiable with a 331 document if the recording and document share an identification 332 number. 333 b. If the recording is not reasonably accessible by a 334 person presented with the document, such person may treat the 335 document as if it does not include the signature of any 336 signatory who appeared by means of live video conference; 337 however, an electronic will whose execution included the use of 338 video conference under this section may be proved as provided in 339 s. 733.201(4). Without limitation, a recording is reasonably 340 accessible if it is accessible at no charge over the Internet 341 pursuant to instructions set forth in the document. 342 (2) If a law requires a record to be in writing, an 343 electronic record satisfies such provision. 344 (3) Any requirement that a document be signed may be 345 satisfied by an electronic signature. 346 (4) A document that is signed electronically is deemed to 347 be executed in this state if all of the following requirements 348 are met: 349 (a) The document states that the person creating the 350 document intends to execute and understands that he or she is 351 executing the document in, and pursuant to the laws of, this 352 state. 353 (b) The person creating the document is, or the attesting 354 witnesses or Florida notary public whose electronic signatures 355 are obtained in the execution of the document are, physically 356 located within this state at the time the document is executed. 357 (c) In the case of a self-proved electronic will, the 358 electronic will designates a qualified custodian who is 359 domiciled in and a resident of this state or incorporated or 360 organized in this state. 361 Section 8. Section 732.526, Florida Statutes, is created to 362 read: 363 732.526 Probate.—An electronic will, other than a 364 holographic or nuncupative will, of a nonresident of this state 365 which is executed or deemed executed in another state in 366 accordance with the laws of that state or of this state may be 367 offered for and admitted to original probate in this state and 368 is subject to the jurisdiction of the courts of this state. The 369 venue for the probate of electronic wills is as provided in s. 370 733.101(1) or, in the case of the electronic will of a 371 nonresident, may be the county in which the qualified custodian 372 or attorney for the petitioner or personal representative has 373 his or her domicile or registered office. 374 Section 9. Section 732.527, Florida Statutes, is created to 375 read: 376 732.527 Qualified custodians.— 377 (1) To serve as a qualified custodian of an electronic 378 will, a person or entity must: 379 (a) Not be named as a fiduciary under the electronic will 380 or an heir or devisee, as defined in s. 731.201, of the 381 testator; 382 (b) Be domiciled in and a resident of this state or be 383 incorporated or organized in this state; 384 (c) In the course of maintaining custody of electronic 385 wills, regularly employ, and store electronic records containing 386 electronic wills in, a system that: 387 1. Protects electronic records from destruction, 388 alteration, or unauthorized access; and 389 2. Detects any change to an electronic record; and 390 (d) Furnish for any court hearing involving an electronic 391 will that is currently or was previously stored by the qualified 392 custodian any information requested by the court pertaining to 393 the qualified custodian’s qualifications, policies, and 394 practices related to the creation, sending, communication, 395 receipt, maintenance, storage, and production of electronic 396 wills. 397 (2) The qualified custodian of an electronic will shall 398 provide access to or information concerning the electronic will, 399 or the electronic record containing the electronic will, only: 400 (a) To the testator; 401 (b) To persons authorized by the testator in the electronic 402 will or in written instructions signed by the testator in 403 accordance with s. 732.502; 404 (c) After the death of the testator, to the testator’s 405 nominated personal representative; or 406 (d) At any time, as directed by a court of competent 407 jurisdiction. 408 (3) The qualified custodian of the electronic record of an 409 electronic will may elect to destroy such record, including any 410 of the documentation required to be created and stored under 411 paragraph (1)(d), at any time after the earlier of the fifth 412 anniversary of the conclusion of the administration of the 413 estate of the testator or 20 years after the death of the 414 testator. 415 (4) A qualified custodian who at any time maintains custody 416 of the electronic record of an electronic will may elect to 417 cease serving in such capacity by: 418 (a) Delivering the electronic will or the electronic record 419 containing the electronic will to the testator, if then living, 420 or, after the death of the testator, by filing the will with the 421 court in accordance with s. 732.901; and 422 (b) If the outgoing qualified custodian intends to 423 designate a successor qualified custodian, by doing the 424 following: 425 1. Providing written notice to the testator of the name, 426 address, and qualifications of the proposed successor qualified 427 custodian. The testator must provide written consent before the 428 electronic record, including the electronic will, is delivered 429 to a successor qualified custodian; 430 2. Delivering the electronic record containing the 431 electronic will to the successor qualified custodian; and 432 3. Delivering to the successor qualified custodian an 433 affidavit of the outgoing qualified custodian stating that: 434 a. The outgoing qualified custodian is eligible to act as a 435 qualified custodian in this state; 436 b. The outgoing qualified custodian is the qualified 437 custodian designated by the testator in the electronic will or 438 appointed to act in such capacity under this paragraph; 439 c. The electronic will has at all times been in the custody 440 of one or more qualified custodians in compliance with this 441 section since the time the electronic record was created, and 442 identifying such qualified custodians; and 443 d. To the best of the outgoing qualified custodian’s 444 knowledge, the electronic will has not been altered since the 445 time it was created. 446 447 For purposes of making this affidavit, the outgoing qualified 448 custodian may rely conclusively on any affidavits delivered by a 449 predecessor qualified custodian in connection with its 450 designation or appointment as qualified custodian; however, all 451 such affidavits must be delivered to the successor qualified 452 custodian. 453 (5) Upon the request of the testator which is made in a 454 writing signed in accordance with s. 732.502, a qualified 455 custodian who at any time maintains custody of the electronic 456 record of the testator’s electronic will must cease serving in 457 such capacity and must deliver to a successor qualified 458 custodian designated in writing by the testator the electronic 459 record containing the electronic will and the affidavit required 460 in subparagraph (4)(b)3. 461 (6) A qualified custodian may not succeed to office as a 462 qualified custodian of an electronic will unless he or she 463 agrees in writing to serve in such capacity. 464 (7) If a qualified custodian is an entity, an affidavit, or 465 an appearance by the testator in the presence of a duly 466 authorized officer or agent of such entity, acting in his or her 467 own capacity as such, shall constitute an affidavit, or an 468 appearance by the testator in the presence of the qualified 469 custodian. 470 (8) A qualified custodian must provide a paper copy of an 471 electronic will and the electronic record containing the 472 electronic will to the testator immediately upon request. For 473 the first such request in any 365-day period, the testator may 474 not be charged a fee for being provided with these documents. 475 (9) The qualified custodian shall be liable for any damages 476 caused by the negligent loss or destruction of the electronic 477 record, including the electronic will, while it is in the 478 possession of the qualified custodian. A qualified custodian may 479 not limit liability for such damages. 480 (10) A qualified custodian may not terminate or suspend 481 access to, or downloads of, the electronic will by the testator. 482 (11) Upon receiving information that the testator is dead, 483 a qualified custodian must deposit the electronic will with the 484 court in accordance with s. 732.901. A qualified custodian may 485 not charge a fee for depositing the electronic will with the 486 clerk, providing the affidavit is made in accordance with s. 487 732.503, or furnishing in writing any information requested by a 488 court under paragraph (1)(d). 489 (12) Except as provided in this act, a qualified custodian 490 must at all times keep information provided by the testator 491 confidential and may not disclose such information to any third 492 party. 493 Section 10. Section 732.528, Florida Statutes, is created 494 to read: 495 732.528 Liability coverage; receivership of qualified 496 custodians.— 497 (1) A qualified custodian shall: 498 (a) Post and maintain a blanket surety bond of at least 499 $250,000 to secure the faithful performance of all duties and 500 obligations required under this act. The bond must be made 501 payable to the Governor and his or her successors in office for 502 the benefit of all persons who store electronic records with a 503 qualified custodian and their estates, beneficiaries, 504 successors, and heirs and be conditioned on the faithful 505 performance of all duties and obligations under this act. The 506 terms of the bond must cover the acts or omissions of the 507 qualified custodian and each agent or employee of the qualified 508 custodian; or 509 (b) Maintain a liability insurance policy that covers any 510 losses sustained by any person who stores electronic records 511 with a qualified custodian and their estates, beneficiaries, 512 successors, and heirs which are caused by errors or omissions by 513 the qualified custodian and each agent or employee of the 514 qualified custodian. The policy must cover losses of up to at 515 least $250,000 in the aggregate. 516 (2) The Attorney General may petition a court of competent 517 jurisdiction for the appointment of a receiver to manage the 518 electronic records of a qualified custodian for proper delivery 519 and safekeeping if any of the following conditions exist: 520 (a) The qualified custodian is ceasing operation. 521 (b) The qualified custodian intends to close the facility 522 and adequate arrangements have not been made for proper delivery 523 of the electronic records in accordance with this act. 524 (c) The Attorney General determines that conditions exist 525 which present a danger that electronic records will be lost or 526 misappropriated. 527 (d) The qualified custodian fails to maintain and post a 528 surety bond or maintain insurance required by this section. 529 Section 11. Present subsection (5) of section 732.901, 530 Florida Statutes, is redesignated as subsection (6) of that 531 section, and a new subsection (5) is added to that section, to 532 read: 533 732.901 Production of wills.— 534 (5) An electronic will that is filed electronically with 535 the clerk through the Florida Courts E-Filing Portal is deemed 536 to have been deposited with the clerk as an original of the 537 electronic will. 538 Section 12. Section 733.201, Florida Statutes, is amended 539 to read: 540 733.201 Proof of wills.— 541 (1) Self-proved wills executed in accordance with this code 542 may be admitted to probate without further proof. 543 (2) A will, other than an electronic will, may be admitted 544 to probate upon the oath of any attesting witness taken before 545 any circuit judge, commissioner appointed by the court, or 546 clerk. 547 (3) If it appears to the court that the attesting witnesses 548 cannot be found or that they have become incapacitated after the 549 execution of the will or their testimony cannot be obtained 550 within a reasonable time, a will, other than an electronic will, 551 may be admitted to probate upon the oath of the personal 552 representative nominated by the will as provided in subsection 553 (2), whether or not the nominated personal representative is 554 interested in the estate, or upon the oath of any person having 555 no interest in the estate under the will stating that the person 556 believes the writing exhibited to be the true last will of the 557 decedent. 558 (4) If an electronic will, including an electronic will 559 whose execution included the use of a video conference under s. 560 732.525(1)(b), is not self-proved, an electronic will may be 561 admitted to probate upon the oath of the two attesting witnesses 562 for the electronic will taken before any circuit judge, any 563 commissioner appointed by the court, or the clerk. If it appears 564 to the court that the attesting witnesses cannot be found, that 565 they have become incapacitated after the execution of the 566 electronic will, or that their testimony cannot be obtained 567 within a reasonable time, an electronic will may be admitted to 568 probate upon the oath of two disinterested witnesses providing 569 all of the following information: 570 (a) The date on which the electronic will was created, if 571 the date is not indicated in the electronic will itself. 572 (b) When and how the electronic will was discovered, and by 573 whom. 574 (c) All of the people who had access to the electronic 575 will. 576 (d) The method by which the electronic will was stored and 577 the safeguards that were in place to prevent alterations to the 578 electronic will. 579 (e) A statement as to whether the electronic will has been 580 altered since its creation. 581 (f) A statement that the electronic will is a true, 582 correct, and complete tangible manifestation of the testator’s 583 will. 584 (g) If the execution of an electronic will included the use 585 of a video conference under s. 732.525(1)(b), a statement as to 586 whether a recording of the video conference is available for 587 inspection by the court or cannot be found after a diligent 588 search. 589 (5) A paper copy of an electronic will which is a true and 590 correct copy of the electronic will may be offered for and 591 admitted to probate and shall constitute an “original” of the 592 electronic will. 593 Section 13. Subsection (11) of section 736.0103, Florida 594 Statutes, is amended to read: 595 736.0103 Definitions.—Unless the context otherwise 596 requires, in this code: 597 (11) “Interests of the beneficiaries” means the beneficial 598 interests intended by the settlor as provided in the terms of a 599thetrust. 600 Section 14. Paragraph (c) of subsection (2) of section 601 736.0105, Florida Statutes, is amended to read: 602 736.0105 Default and mandatory rules.— 603 (2) The terms of a trust prevail over any provision of this 604 code except: 605 (c) The requirement that a trustand its terms be for the606benefit of the trust’s beneficiaries, and that the trusthave a 607 purpose that is lawful, not contrary to public policy, and 608 possible to achieve. 609 Section 15. Subsections (1) and (3) of section 736.0109, 610 Florida Statutes, are amended to read: 611 736.0109 Methods and waiver of notice.— 612 (1) Notice to a person under this code or the sending of a 613 document to a person under this code must be accomplished in a 614 manner reasonably suitable under the circumstances and likely to 615 result in receipt of the notice or document. Permissible methods 616 of notice or for sending a document include first-class mail, 617 personal delivery, delivery to the person’s last known place of 618 residence or place of business,ora properly directed facsimile 619 or other electronic message, or posting to a secure electronic 620 account or website in accordance with subsection (3). 621 (3) A document that is sent solely by posting to an 622 electronic account or website is not deemed sent for purposes of 623 this section unless the sender complies with this subsection. 624 The sender has the burden of proving compliance with this 625 subsectionIn addition to the methods listed in subsection (1)626for sending a document, a sender may post a document to a secure627electronic account or website where the document can be628accessed. 629 (a)Before a document may be posted to an electronic630account or website,The recipient must sign a separate written 631 authorization solely for the purpose of authorizing the sender 632 to post documents on an electronic account or website before 633 such posting. The written authorization must: 634 1. Specifically indicate whether a trust accounting, trust 635 disclosure document, or limitation notice, as those terms are 636 defined in s. 736.1008(4), will be posted in this manner, and 637 generally enumerate the other types of documents that may be 638 posted in this manner. 639 2. Contain specific instructions for accessing the 640 electronic account or website, including the security procedures 641 required to access the electronic account or website, such as a 642 username and password. 643 3. Advise the recipient that a separate notice will be sent 644 when a document is posted to the electronic account or website 645 and the manner in which the separate notice will be sent. 646 4. Advise the recipient that the authorization to receive 647 documents by electronic posting may be amended or revoked at any 648 time and include specific instructions for revoking or amending 649 the authorization, including the address designated for the 650 purpose of receiving notice of the revocation or amendment. 651 5. Advise the recipient that posting a document on the 652 electronic account or website may commence a limitations period 653 as short as 6 months even if the recipient never actually 654 accesses the electronic account, electronic website, orthe655 document. 656 (b) Once the recipient signs the written authorization, the 657 sender must provide a separate notice to the recipient when a 658 document is posted to the electronic account or website. As used 659 in this subsection, the term “separate notice” means a notice 660 sent to the recipient by means other than electronic posting, 661 which identifies each document posted to the electronic account 662 or website and provides instructions for accessing theposted663 document. The separate notice requirement is deemed satisfied if 664 the recipient accesses the document on the electronic account or 665 website. 666 (c) A document sent by electronic posting is deemed 667 received by the recipient on the earlier of the date on which 668thatthe separate notice is received or the date on whichthat669 the recipient accesses the document on the electronic account or 670 website. 671 (d) At least annually after a recipient signs a written 672 authorization, a sender shall send a notice advising recipients 673 who have authorized one or more documents to be posted to an 674 electronic account or website that such posting may commence a 675 limitations period as short as 6 months even if the recipient 676 never accesses the electronic account or website or the document 677 and that authority to receive documents by electronic posting 678 may be amended or revoked at any time. This notice must be given 679 by means other than electronic posting and may not be 680 accompanied by any other written communication. Failure to 681 provide such notice within 380 days after the last notice is 682 deemed to automatically revoke the authorization to receive 683 documents in the manner permitted under this subsection 380 days 684 after the last notice is sent. 685 (e) The notice required in paragraph (d) may be in 686 substantially the following form: “You have authorized the 687 receipt of documents through posting to an electronic account or 688 website on whichwherethe documents can be accessed. This 689 notice is being sent to advise you that a limitations period, 690 which may be as short as 6 months, may be running as to matters 691 disclosed in a trust accounting or other written report of a 692 trustee posted to the electronic account or website even if you 693 never actually access the electronic account or website or the 694 documents. You may amend or revoke the authorization to receive 695 documents by electronic posting at any time. If you have any 696 questions, please consult your attorney.” 697 (f) A sender may rely on the recipient’s authorization 698 until the recipient amends or revokes the authorization by 699 sending a notice to the address designated for that purpose in 700 the authorization or in the manner specified on the electronic 701 account or website. The recipient, at any time, may amend or 702 revoke an authorization to have documents posted on the 703 electronic account or website. 704 (g) If a document is provided to a recipient solely through 705 electronic posting pursuant to this subsection, the recipient 706 must be able to access and print or download the document until 707 the earlier ofremain accessible to the recipient on the708electronic account or website for at least4 years after the 709 date that the document is deemed received by the recipient or 710 the date upon which the recipient’s access to the electronic 711 account or website is terminated for any reason. 712 1. If the recipient’s access to the electronic account or 713 website is terminated for any reason, such termination does not 714 invalidate the notice or sending of any document previously 715 posted on the electronic account or website in accordance with 716 this subsection, but may toll the applicable limitations period 717 as provided in subparagraph 2. 718 2. If the recipient’s access to the electronic account or 719 website is terminated by the sender sooner than 4 years after 720 the date on which the document was received by the recipient, 721 any applicable limitations period set forth in s. 736.1008(1) or 722 (2) which is still running is tolled for any information 723 adequately disclosed in a document sent solely by electronic 724 posting, from the date on which the recipient’s access to the 725 electronic account or website was terminated by the sender until 726 45 days after the date on which the sender provides one of the 727 following to the recipient by means other than electronic 728 posting: 729 a. Notice of such termination and notification to the 730 recipient that he or she may request that any documents sent 731 during the prior 4 years solely through electronic posting be 732 provided to him or her by other means at no cost; or 733 b. Notice of such termination and notification to the 734 recipient that his or her access to the electronic account or 735 website has been restored. 736 737 Any applicable limitations period is further tolled from the 738 date on which any request is made pursuant to sub-subparagraph 739 2.a. until 20 days after the date on which the requested 740 documents are provided to the recipient by means other than 741 electronic postingThe electronic account or website must allow742the recipient to download or print the document.This subsection743does not affect or alter the duties of a trustee to keep clear,744distinct, and accurate records pursuant to s. 736.0810 or affect745or alter the time periods for which the trustee must maintain746those records.747 (h) For purposes of this subsection, access to an 748 electronic account or website is terminated by the sender when 749 the sender unilaterally terminates the recipient’s ability to 750 access the electronic website or account or download or print 751 any document posted on such website or account. Access is not 752 terminated by the sender when access is terminated by an action 753 of the recipient or by an action of the sender in response to 754 the recipient’s request to terminate access. The recipient’s 755 revocation of authorization pursuant to paragraph (f) is not 756 considered a request to terminate accessTo be effective, the757posting of a document to an electronic account or website must758be done in accordance with this subsection. The sender has the759burden of establishing compliance with this subsection. 760 (i) This subsection does not affect or alter the duties of 761 a trustee to keep clear, distinct, and accurate records pursuant 762 to s. 736.0810 or affect or alter the time periods for which the 763 trustee must maintain such recordspreclude the sending of a764document by other means. 765 (j) This subsection governs the posting of a document 766 solely for the purpose of giving notice under this code or the 767 sending of a document to a person under this code and does not 768 prohibit or otherwise apply to the posting of a document to an 769 electronic account or website for any other purpose or preclude 770 the sending of a document by any other means. 771 Section 16. Subsection (3) of section 736.0110, Florida 772 Statutes, is amended to read: 773 736.0110 Others treated as qualified beneficiaries.— 774 (3) The Attorney General may assert the rights of a 775 qualified beneficiary with respect to a charitable trust having 776 its principal place of administration in this state. The 777 Attorney General has standing to assert such rights in any 778 judicial proceedings. 779 Section 17. Paragraph (b) of subsection (2) of section 780 736.0403, Florida Statutes, is amended to read: 781 736.0403 Trusts created in other jurisdictions; formalities 782 required for revocable trusts.— 783 (2) Notwithstanding subsection (1): 784 (b) The testamentary aspects of a revocable trust, executed 785 by a settlor who is a domiciliary of this state at the time of 786 execution, are invalid unless the trust instrument is executed 787 by the settlor with the formalities required for the execution 788 of a will under s. 732.502 or an electronic will under s. 789 732.523 which is self-proved; however, the qualified custodian 790 of the trust instrument may not also be a trustee of the trust 791in this state. For purposes of this subsection, the term 792 “testamentary aspects” means those provisions of the trust 793 instrument that dispose of the trust property on or after the 794 death of the settlor other than to the settlor’s estate. 795 Section 18. Section 736.0404, Florida Statutes, is amended 796 to read: 797 736.0404 Trust purposes.—A trust may be created only to the 798 extent the purposes of the trust are lawful, not contrary to 799 public policy, and possible to achieve.A trust and its terms800must be for the benefit of its beneficiaries.801 Section 19. Effective upon becoming a law, section 802 736.04117, Florida Statutes, is amended to read: 803 736.04117 Trustee’s power to invade principal in trust.— 804 (1) DEFINITIONS.—As used in this section, the term: 805 (a) “Absolute power” meansUnless the trust instrument806expressly provides otherwise, a trustee who has absolute power807under the terms of a trust to invade the principal of the trust,808referred to in this section as the “first trust,” to make809distributions to or for the benefit of one or more persons may810instead exercise the power by appointing all or part of the811principal of the trust subject to the power in favor of a812trustee of another trust, referred to in this section as the813“second trust,” for the current benefit of one or more of such814persons under the same trust instrument or under a different815trust instrument; provided:8161. The beneficiaries of the second trust may include only817beneficiaries of the first trust;8182. The second trust may not reduce any fixed income,819annuity, or unitrust interest in the assets of the first trust;820and8213. If any contribution to the first trust qualified for a822marital or charitable deduction for federal income, gift, or823estate tax purposes under the Internal Revenue Code of 1986, as824amended, the second trust shall not contain any provision which,825if included in the first trust, would have prevented the first826trust from qualifying for such a deduction or would have reduced827the amount of such deduction.828(b) For purposes of this subsection, an absolute power to829invade principal shall includea power to invade principal that 830 is not limited to specific or ascertainable purposes, such as 831 health, education, maintenance, and support, regardless of 832 whetheror notthe term “absolute” is used. A power to invade 833 principal for purposes such as best interests, welfare, comfort, 834 or happiness constitutesshall constitutean absolute power not 835 limited to specific or ascertainable purposes. 836 (b) “Authorized trustee” means a trustee, other than the 837 settlor or a beneficiary, who has the power to invade the 838 principal of a trust. 839 (c) “Beneficiary with a disability” means a beneficiary of 840 the first trust who the authorized trustee believes may qualify 841 for governmental benefits based on disability, regardless of 842 whether the beneficiary currently receives those benefits or has 843 been adjudicated incapacitated. 844 (d) “Current beneficiary” means a beneficiary who, on the 845 date his or her qualification is determined, is a distributee or 846 permissible distributee of trust income or principal. The term 847 includes the holder of a presently exercisable general power of 848 appointment but does not include a person who is a beneficiary 849 only because he or she holds another power of appointment. 850 (e) “Governmental benefits” means financial aid or services 851 from any state, federal, or other public agency. 852 (f) “Internal Revenue Code” means the Internal Revenue Code 853 of 1986, as amended. 854 (g) “Power of appointment” has the same meaning as provided 855 in s. 731.201(30). 856 (h) “Presently exercisable general power of appointment” 857 means a power of appointment exercisable by the powerholder at 858 the relevant time. The term: 859 1. Includes a power of appointment that is exercisable only 860 after the occurrence of a specified event or that is subject to 861 a specified restriction, but only after the event has occurred 862 or the restriction has been satisfied. 863 2. Does not include a power exercisable only upon the 864 powerholder’s death. 865 (i) “Substantially similar” means that there is no material 866 change in a beneficiary’s beneficial interests or in the power 867 to make distributions and that the power to make a distribution 868 under a second trust for the benefit of a beneficiary who is an 869 individual is substantially similar to the power under the first 870 trust to make a distribution directly to the beneficiary. A 871 distribution is deemed to be for the benefit of a beneficiary 872 if: 873 1. The distribution is applied for the benefit of a 874 beneficiary; 875 2. The beneficiary is under a legal disability or the 876 trustee reasonably believes the beneficiary is incapacitated, 877 and the distribution is made as permitted under this code; or 878 3. The distribution is made as permitted under the terms of 879 the first trust instrument and the second trust instrument for 880 the benefit of the beneficiary. 881 (j) “Supplemental needs trust” means a trust that the 882 authorized trustee believes would not be considered a resource 883 for purposes of determining whether the beneficiary who has a 884 disability is eligible for governmental benefits. 885 (k) “Vested interest” means a current unconditional right 886 to receive a mandatory distribution of income, a specified 887 dollar amount, or a percentage of value of a trust, or a current 888 unconditional right to withdraw income, a specified dollar 889 amount, or a percentage of value of a trust, which right is not 890 subject to the occurrence of a specified event, the passage of a 891 specified time, or the exercise of discretion. 892 1. The term includes a presently exercisable general power 893 of appointment. 894 2. The term does not include a beneficiary’s interest in a 895 trust if the trustee has discretion to make a distribution of 896 trust property to a person other than such beneficiary. 897 (2) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN 898 AUTHORIZED TRUSTEE HAS ABSOLUTE POWER TO INVADE.— 899 (a) Unless a trust instrument expressly provides otherwise, 900 an authorized trustee who has absolute power under the terms of 901 the trust to invade its principal, referred to in this section 902 as the “first trust,” to make current distributions to or for 903 the benefit of one or more beneficiaries may instead exercise 904 such power by appointing all or part of the principal of the 905 trust subject to such power in favor of a trustee of one or more 906 other trusts, whether created under the same trust instrument as 907 the first trust or a different trust instrument, including a 908 trust instrument created for the purposes of exercising the 909 power granted by this section, each referred to in this section 910 as the “second trust,” for the current benefit of one or more of 911 such beneficiaries only if: 912 1. The beneficiaries of the second trust include only 913 beneficiaries of the first trust; and 914 2. The second trust does not reduce any vested interest. 915 (b) In an exercise of absolute power, the second trust may: 916 1. Retain a power of appointment granted in the first 917 trust; 918 2. Omit a power of appointment granted in the first trust, 919 other than a presently exercisable general power of appointment; 920 3. Create or modify a power of appointment if the 921 powerholder is a current beneficiary of the first trust; 922 4. Create or modify a power of appointment if the 923 powerholder is a beneficiary of the first trust who is not a 924 current beneficiary, but the exercise of the power of 925 appointment may take effect only after the powerholder becomes, 926 or would have become if then living, a current beneficiary of 927 the first trust; and 928 5. Extend the term of the second trust beyond the term of 929 the first trust. 930 (c) The class of permissible appointees in favor of which a 931 created or modified power of appointment may be exercised may 932 differ from the class identified in the first trust. 933 (3) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN 934 AUTHORIZED TRUSTEE DOES NOT HAVE ABSOLUTE POWER TO INVADE. 935 Unless the trust instrument expressly provides otherwise, an 936 authorized trustee who has a power, other than an absolute 937 power, under the terms of a first trust to invade principal to 938 make current distributions to or for the benefit of one or more 939 beneficiaries may instead exercise such power by appointing all 940 or part of the principal of the first trust subject to such 941 power in favor of a trustee of one or more second trusts. If the 942 authorized trustee exercises such power: 943 (a) The second trusts, in the aggregate, shall grant each 944 beneficiary of the first trust beneficial interests in the 945 second trusts which are substantially similar to the beneficial 946 interests of the beneficiary in the first trust. 947 (b) If the first trust grants a power of appointment to a 948 beneficiary of the first trust, the second trust shall grant 949 such power of appointment in the second trust to such 950 beneficiary, and the class of permissible appointees shall be 951 the same as in the first trust. 952 (c) If the first trust does not grant a power of 953 appointment to a beneficiary of the first trust, then the second 954 trust may not grant a power of appointment in the second trust 955 to such beneficiary. 956 (d) Notwithstanding paragraphs (a), (b), and (c), the term 957 of the second trust may extend beyond the term of the first 958 trust, and, for any period after the first trust would have 959 otherwise terminated, in whole or in part, under the provisions 960 of the first trust, the trust instrument of the second trust 961 may, with respect to property subject to such extended term: 962 1. Include language providing the trustee with the absolute 963 power to invade the principal of the second trust during such 964 extended term; and 965 2. Create a power of appointment, if the powerholder is a 966 current beneficiary of the first trust, or expand the class of 967 permissible appointees in favor of which a power of appointment 968 may be exercised. 969 (4) DISTRIBUTION FROM FIRST TRUST TO SUPPLEMENTAL NEEDS 970 TRUST.— 971 (a) Notwithstanding subsections (2) and (3), unless the 972 trust instrument expressly provides otherwise, an authorized 973 trustee who has the power under the terms of a first trust to 974 invade the principal of the first trust to make current 975 distributions to or for the benefit of a beneficiary with a 976 disability may instead exercise such power by appointing all or 977 part of the principal of the first trust in favor of a trustee 978 of a second trust that is a supplemental needs trust if: 979 1. The supplemental needs trust benefits the beneficiary 980 with a disability; 981 2. The beneficiaries of the second trust include only 982 beneficiaries of the first trust; and 983 3. The authorized trustee determines that the exercise of 984 such power will further the purposes of the first trust. 985 (b) Except as affected by any change to the interests of 986 the beneficiary with a disability, the second trusts, in the 987 aggregate, shall grant each other beneficiary of the first trust 988 beneficial interests in the second trusts which are 989 substantially similar to such beneficiary’s beneficial interests 990 in the first trust. 991 (5) PROHIBITED DISTRIBUTIONS.— 992 (a) An authorized trustee may not distribute the principal 993 of a trust under this section in a manner that would prevent a 994 contribution to that trust from qualifying for, or that would 995 reduce the exclusion, deduction, or other federal tax benefit 996 that was originally claimed or could have been claimed for, that 997 contribution, including: 998 1. The exclusions under s. 2503(b) or s. 2503(c) of the 999 Internal Revenue Code; 1000 2. A marital deduction under s. 2056, s. 2056A, or s. 2523 1001 of the Internal Revenue Code; 1002 3. A charitable deduction under s. 170(a), s. 642(c), s. 1003 2055(a), or s. 2522(a) of the Internal Revenue Code; 1004 4. Direct skip treatment under s. 2642(c) of the Internal 1005 Revenue Code; or 1006 5. Any other tax benefit for income, gift, estate, or 1007 generation-skipping transfer tax purposes under the Internal 1008 Revenue Code. 1009 (b) If S corporation stock is held in the first trust, an 1010 authorized trustee may not distribute all or part of that stock 1011 to a second trust that is not a permitted shareholder under s. 1012 1361(c)(2) of the Internal Revenue Code. If the first trust 1013 holds stock in an S corporation and is, or but for provisions of 1014 paragraphs (a), (c), and (d) would be, a qualified subchapter S 1015 trust within the meaning of s. 1361(d) of the Internal Revenue 1016 Code, the second trust instrument may not include or omit a term 1017 that prevents it from qualifying as a qualified subchapter S 1018 trust. 1019 (c) Except as provided in paragraphs (a), (b), and (d), an 1020 authorized trustee may distribute the principal of a first trust 1021 to a second trust regardless of whether the settlor is treated 1022 as the owner of either trust under ss. 671-679 of the Internal 1023 Revenue Code; however, if the settlor is not treated as the 1024 owner of the first trust, he or she may not be treated as the 1025 owner of the second trust unless he or she at all times has the 1026 power to cause the second trust to cease being treated as if it 1027 were owned by the settlor. 1028 (d) If an interest in property which is subject to the 1029 minimum distribution rules of s. 401(a)(9) of the Internal 1030 Revenue Code is held in trust, an authorized trustee may not 1031 distribute such an interest to a second trust under subsection 1032 (2), subsection (3), or subsection (4) if the distribution would 1033 shorten the otherwise applicable maximum distribution period. 1034 (6) EXERCISE BY WRITING.—The exercise of a power to invade 1035 principal under subsection (2), subsection (3), or subsection 1036 (4) mustThe exercise of a power to invade principal under1037subsection(1)shallbe by a writtenaninstrumentin writing,1038 signed and acknowledged by the authorized trustee,and filed 1039 with the records of the first trust. 1040 (7)(3)RESTRICTIONS ON EXERCISE OF POWER.—The exercise of a 1041 power to invade principal under subsection (2), subsection (3), 1042 or subsection (4): 1043 (a) Is(1)shall beconsidered the exercise of a power of 1044 appointment, excludingother thana power to appoint to the 1045 authorized trustee, the authorized trustee’s creditors, the 1046 authorized trustee’s estate, or the creditors of the authorized 1047 trustee’s estate. 1048 (b) Is, andShall besubject to the provisions of s. 1049 689.225 covering the time at which the permissible period of the 1050 rule against perpetuities begins and the law that determines the 1051 permissible period of the rule against perpetuities of the first 1052 trust. 1053 (c) May be to a second trust created or administered under 1054 the law of any jurisdiction. 1055 (d) May not: 1056 1. Increase the authorized trustee’s compensation beyond 1057 the compensation specified in the first trust instrument; or 1058 2. Relieve the authorized trustee from liability for breach 1059 of trust or provide for indemnification of the authorized 1060 trustee for any liability or claim to a greater extent than the 1061 first trust instrument; however, the exercise of the power may 1062 divide and reallocate fiduciary powers among fiduciaries and 1063 relieve a fiduciary from liability for an act or failure to act 1064 of another fiduciary as otherwise allowed under law or common 1065 law. 1066 (8) NOTICE.— 1067 (a)(4)The authorized trustee shall provide written 1068 notification of the manner in which he or she intends to 1069 exercise his or her power to invade principal tonotifyall 1070qualified beneficiariesof the following partiesfirst trust,in1071writing,at least 60 days beforeprior tothe effective date of 1072 the authorized trustee’s exercise of such powerthe trustee’s1073power to invade principalpursuant to subsection (2), subsection 1074 (3), or subsection (4):(1), of the manner in which the trustee1075intends to exercise the power.1076 1. All qualified beneficiaries of the first trust; 1077 2. If paragraph (5)(c) applies, the settlor of the first 1078 trust; 1079 3. All trustees of the first trust; and 1080 4. Any person who has the power to remove or replace the 1081 authorized trustee of the first trust. 1082 (b) The authorizedA copy of the proposed instrument1083exercising the power shallsatisfy thetrustee’snotice1084 obligation to provide notice under this subsection is satisfied 1085 when he or she provides copies of the proposed instrument 1086 exercising the power, the trust instrument of the first trust, 1087 and the proposed trust instrument of the second trust. 1088 (c) If all of those required to be notifiedqualified1089beneficiarieswaive the notice period by signed written 1090 instrument delivered to the authorized trustee, the authorized 1091 trustee’s power to invade principal shall be exercisable 1092 immediately. 1093 (d) The authorized trustee’s notice under this subsection 1094 doesshallnot limit the right of any beneficiary to object to 1095 the exercise of the authorized trustee’s power to invade 1096 principal except as otherwise provided in other applicable 1097 provisions of this code. 1098 (9)(5)INAPPLICABILITY OF SPENDTHRIFT CLAUSE OR OTHER 1099 PROHIBITION.—The exercise of the power to invade principal under 1100 subsection (2), subsection (3), or subsection (4)(1)is not 1101 prohibited by a spendthrift clause or by a provision in the 1102 trust instrument that prohibits amendment or revocation of the 1103 trust. 1104 (10)(6)NO DUTY TO EXERCISE.—Nothing in this section is 1105 intended to create or imply a duty to exercise a power to invade 1106 principal, and no inference of impropriety mayshallbe made as 1107 a result of an authorized trustee’s failure to exercisea1108trustee not exercisingthe power to invade principal conferred 1109 under subsections (2), (3), and (4)subsection (1). 1110 (11)(7)NO ABRIDGEMENT OF COMMON LAW RIGHTS.—The provisions1111ofThis section mayshallnot be construed to abridge the right 1112 of any trustee who has a power of invasion to appoint property 1113 in further trust that arises under the terms of the first trust 1114 or under any other section of this code or under another 1115 provision of law or under common law. 1116 Section 20. Subsection (1) of section 736.0708, Florida 1117 Statutes, is amended to read: 1118 736.0708 Compensation of trustee.— 1119 (1) If the terms of a trust do not specify athetrustee’s 1120 compensation, theatrustee, including each cotrustee, is 1121 entitled to compensation that is reasonable under the 1122 circumstances. In the aggregate, the reasonable compensation for 1123 multiple trustees may be greater than for a single trustee. 1124 Section 21. Subsection (3) of section 736.08135, Florida 1125 Statutes, is amended to read: 1126 736.08135 Trust accountings.— 1127 (3) Subsections (1) and (2) govern the form and content of 1128This section applies toall trust accountings rendered for any 1129 accounting periods beginning on or after January 1, 2003, and 1130 all trust accountings rendered on or after July 1, 2017. This 1131 subsection does not affect the beginning period from which a 1132 trustee is required to render a trust accounting. 1133 Section 22. Subsection (3) of section 736.1008, Florida 1134 Statutes, is amended to read: 1135 736.1008 Limitations on proceedings against trustees.— 1136 (3) When a trustee has not issued a final trust accounting 1137 or has not given written notice to the beneficiary of the 1138 availability of the trust records for examination and that 1139 claims with respect to matters not adequately disclosed may be 1140 barred, a claim against the trustee for breach of trust based on 1141 a matter not adequately disclosed in a trust disclosure document 1142 is barred as provided in chapter 95 and accrues when the 1143 beneficiary has actual knowledge of: 1144 (a) The facts upon which the claim is based, if such actual 1145 knowledge is established by clear and convincing evidence; or 1146 (b) The trustee’s repudiation of the trust or adverse 1147 possession of trust assets. 1148 1149 Paragraph (a) applies to claims based upon acts or omissions 1150 occurring on or after July 1, 2008. A beneficiary’s actual 1151 knowledge that he or she has not received a trust accounting 1152 does not cause a claim to accrue against the trustee for breach 1153 of trust based upon the failure to provide a trust accounting 1154 required by s. 736.0813 or former s. 737.303 and does not 1155 commence the running of any period of limitations or laches for 1156 such a claim, and paragraph (a) and chapter 95 do not bar any 1157 such claim. 1158 Section 23. The changes to ss. 736.08135 and 736.1008, 1159 Florida Statutes, made by this act are intended to clarify 1160 existing law, are remedial in nature, and apply retroactively to 1161 all cases pending or commenced on or after July 1, 2017. 1162 Section 24. Present subsections (2), (3), and (4) of 1163 section 736.1201, Florida Statutes, are redesignated as 1164 subsections (3), (4), and (5), respectively, present subsection 1165 (5) of that section is amended, and a new subsection (2) is 1166 added to that section, to read: 1167 736.1201 Definitions.—As used in this part: 1168 (2) “Delivery of notice” means delivery of a written notice 1169 required under this part using any commercial delivery service 1170 requiring a signed receipt or by any form of mail requiring a 1171 signed receipt. 1172(5) “State attorney” means the state attorney for the1173judicial circuit of the principal place of administration of the1174trust pursuant to s. 736.0108.1175 Section 25. Section 736.1205, Florida Statutes, is amended 1176 to read: 1177 736.1205 Notice that this part does not apply.—In the case 1178 of a power to make distributions, if the trustee determines that 1179 the governing instrument contains provisions that are more 1180 restrictive than s. 736.1204(2), or if the trust contains other 1181 powers, inconsistent with the provisions of s. 736.1204(3) that 1182 specifically direct acts by the trustee, the trustee shall 1183 notify thestateAttorney General by delivery of notice when the 1184 trust becomes subject to this part. Section 736.1204 does not 1185 apply to any trust for which notice has been given pursuant to 1186 this section unless the trust is amended to comply with the 1187 terms of this part. 1188 Section 26. Sections 1 through 12 and section 17 of this 1189 act apply to electronic wills executed on or after July 1, 2017. 1190 Section 27. Subsection (2) of section 736.1206, Florida 1191 Statutes, is amended to read: 1192 736.1206 Power to amend trust instrument.— 1193 (2) In the case of a charitable trust that is not subject 1194 tothe provisions ofsubsection (1), the trustee may amend the 1195 governing instrument to comply withthe provisions ofs. 1196 736.1204(2) after delivery of notice to, and with the consent 1197 of, thestateAttorney General. 1198 Section 28. Section 736.1207, Florida Statutes, is amended 1199 to read: 1200 736.1207 Power of court to permit deviation.—This part does 1201 not affect the power of a court to relieve a trustee from any 1202 restrictions on the powers and duties that are placed on the 1203 trustee by the governing instrument or applicable law for cause 1204 shown and on complaint of the trustee, thestateAttorney 1205 General, or an affected beneficiary and notice to the affected 1206 parties. 1207 Section 29. Paragraph (b) of subsection (4) of section 1208 736.1208, Florida Statutes, is amended to read: 1209 736.1208 Release; property and persons affected; manner of 1210 effecting.— 1211 (4) Delivery of a release shall be accomplished as follows: 1212 (b) If the release is accomplished by reducing the class of 1213 permissible charitable organizations, by delivery of noticea1214copyof the release to thestateAttorney General, including a 1215 copy of the release. 1216 Section 30. Section 736.1209, Florida Statutes, is amended 1217 to read: 1218 736.1209 Election to come under this part.—With the consent 1219 of that organization or organizations, a trustee of a trust for 1220 the benefit of a public charitable organization or organizations 1221 may come under s. 736.1208(5) by delivery of notice tofiling1222withthestateAttorney General of theanelection, accompanied 1223 by the proof of required consent. Thereafter the trust shall be 1224 subject to s. 736.1208(5). 1225 Section 31. Except as otherwise provided in this act and 1226 except for this section, which shall take effect upon becoming a 1227 law, this act shall take effect July 1, 2017.