Florida Banking February 2024

affirmative duty to search or find if any property held by a decedent or that decedent’s surviving spouse is subject to the act at the time of the decedent’s death. Under this provision, administrators of the trust are responsible for notifying creditors when they file the Notice of Administration and Notice to Creditors. Once creditors are put on notice, they can decide if they want to investigate if the property is subject to the act. In addition, the new proposed law creates a 2-year statute of repose and a dispute resolution system, allowing for a creditor to challenge claims related to title disputes of properties that are subject to the act. With the thousands of retired persons and other-state citizens moving to Florida every year, this provides an important level of security to testators to know that their testamentary wishes regarding their property will be honored by our state’s laws after they are deceased. While there are some that argue that the Townsend court’s decision was a victory for creditors, FBA’s legal advisors do not believe the holding would be sustained or upheld by future courts in the long run. The FBA’s Trust and Wealth Management Division has voted to remain neutral regarding this legislation. The FBA – Here to Help Your FBA Trust Division is always looking for good legislative policy to push in the halls of the Florida Legislature. If your trust company has an issue that you think we can assist with, please reach out to me at kpratt@floridabankers.com in order to discuss a potential legislative solution. Over the years, we have had many good ideas that turned into legislation that came from individuals who were struggling at their trust companies with particular issues. Please let us know if we can be of assistance.

information about deceased individuals contained in the land records held by the Clerks of Court of Florida’s various counties. Where there is an estate with a recorded will or codicil, heirs or beneficiaries are listed. However, in some circumstances, the beneficiaries can be different from the heirs—for example, if a beneficiary dies, a homestead is devised invalidly, or there is an incorrectly named charity. Where there is no will, there are often no indications of who the beneficiaries may be from land records. Unfortunately, Florida’s Clerks of Court are allowed to destroy certain records after 10 years, which could bring light to those who are beneficiaries to an intestate estate. The legislation amends the statute to add to the list of orders that must be maintained by Clerks of Court. Those include: • Orders Admitting Will to Probate • Orders Determining Beneficiaries • Petitions Affecting or Describing Real Property and • Petition for Summary Administration. If passed, this legislation will assist trustees by saving them the time and added expense of identifying beneficiaries without going through other, more expensive judicial resources and means. Johnson v. Townsend Fix In 1992, the Florida Legislature adopted the Florida Disposition of Community Property Rights at Death Act. By passing this law, the legislature ensured that the testamentary intentions of new residents to the state, were strictly honored as it applied to relocating spouses that came from community property states. Thirty years later, a court case, Johnson v. Townsend , 259 So.3d. 851 (Fla. 4th DCA 2018), held that Florida’s probate claims procedures,

applied to title disputes arising under the act, are exempt. The Townsend ruling ultimately resulted in the unfortunate forfeiture of a surviving spouse’s property rights. Senate Bill 1064 and House Bill 923 have also been filed to directly address the ruling in the Townsend case. The legislation positively impacts trustees by providing trustee protections in Section 732.223, Florida Statutes. These provisions allow a trustee to transfer property, as provided in a will, trust or other valid interest, without being liable for that transfer if they relied in good faith on the validity of the governing instrument. The legislation also provides that a personal representative or curator does not have an

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