Fla. Stat. § 736.0103 - Commentary to Florida Trust Code
Fla. Stat. § 736.0103 provides definitions for the Florida Trust Code. There are 27 separate terms defined. Because of the importance of definitions, each of those terms has been given a separate commentary article. Links to each definition commentary page are found below:
Text of Fla. Stat. § 736.0103
Definitions.—Unless the context otherwise requires, in this code:
(1) “Action,” with respect to an act of a trustee, includes a failure to act.
(2) “Affiliate” means any person or entity that directly or indirectly through one or more intermediaries owns or controls, is owned or controlled by, or is under common control or ownership with, the fiduciary. An affiliate may include, but is not limited to, an investment adviser, administrator, broker, transfer agent, placement agent, servicing agent, registrar, custodian, underwriter, sponsor, distributor, or manager.
(3) “Ascertainable standard” means a standard relating to an individual’s health, education, support, or maintenance within the meaning of s. 2041(b)(1)(A) or s. 2514(c)(1) of the Internal Revenue Code of 1986, as amended.
(4) “Beneficiary” means a person who has a present or future beneficial interest in a trust, vested or contingent, or who holds a power of appointment over trust property in a capacity other than that of trustee. An interest as a permissible appointee of a power of appointment, held by a person in a capacity other than that of trustee, is not a beneficial interest for purposes of this subsection. Upon an irrevocable exercise of a power of appointment, the interest of a person in whose favor the appointment is made shall be considered a present or future beneficial interest in a trust in the same manner as if the interest had been included in the trust instrument.
(5) “Charitable trust” means a trust, or portion of a trust, created for a charitable purpose as described in s. 736.0405(1).
(6) “Directed trust” means a trust for which the terms of the trust grant a power of direction.
(7) “Directed trustee” means a trustee that is subject to a trust director’s power of direction.
(8) “Distributee” means a beneficiary who is currently entitled to receive a distribution.
(9) “Environmental law” means a federal, state, or local law, rule, regulation, or ordinance that relates to protection of the environment or human health.
(10) “General power of appointment” means a power of appointment exercisable in favor of the holder of the power, the power holder’s creditors, the power holder’s estate, or the creditors of the power holder’s estate.
(11) “Guardian of the person” means a person appointed by the court to make decisions regarding the support, care, education, health, and welfare of a minor or an incapacitated adult. The term does not include a guardian ad litem.
(12) “Guardian of the property” means a person appointed by the court to administer the estate of a minor or incapacitated adult.
(13) “Interests of the beneficiaries” means the beneficial interests intended by the settlor as provided in the terms of a trust.
(14) “Jurisdiction” with respect to a geographic area, includes a state or country.
(15) “Permissible distributee” means a beneficiary who is currently eligible to receive a distribution.
(16) “Power of direction” means a power over a trust granted to a person by the terms of the trust to the extent the power is exercisable while the person is not serving as a trustee. The term includes a power over the investment, management, or distribution of trust property; a power to amend a trust instrument or terminate a trust; or a power over other matters of trust administration. The term excludes the powers excluded from part XIV of this chapter under s. 736.1405(2).
(17) “Power of withdrawal” means a presently exercisable general power of appointment other than a power:
(a) Exercisable by a trustee and limited by an ascertainable standard; or
(b) Exercisable by another person only upon consent of the trustee or a person holding an adverse interest.
(18) “Property” means anything that may be the subject of ownership, real or personal, legal or equitable, or any interest therein.
(19) “Qualified beneficiary” means a living beneficiary who, on the date the beneficiary’s qualification is determined:
(a) Is a distributee or permissible distributee of trust income or principal;
(b) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in paragraph (a) terminated on that date without causing the trust to terminate; or
(c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated in accordance with its terms on that date.
(20) “Revocable,” as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest.
(21) “Settlor” means a person, including a testator, who creates or contributes property to a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person’s contribution except to the extent another person has the power to revoke or withdraw that portion.
(22) “Spendthrift provision” means a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary’s interest.
(23) “State” means any state of the United States and includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
(24) “Terms of a trust” means:
(a) Except as otherwise provided in paragraph (b), the manifestation of the settlor’s intent regarding a trust’s provisions as:
1. Expressed in the trust instrument; or
2. Established by other evidence that would be admissible in a judicial proceeding; or
(b) The trust’s provisions as established, determined, or amended by:
1. A trustee or trust director in accordance with applicable law;
2. Court order; or
3. A nonjudicial settlement agreement under s. 736.0111, relating to nonjudicial settlement agreements.
(25) “Trust director” means a person who is granted a power of direction by the terms of a trust to the extent the power is exercisable while the person is not serving as a trustee. The person is a trust director whether or not the terms of the trust refer to the person as a trust director and whether or not the person is a beneficiary or settlor of the trust.
(26) “Trust instrument” means an instrument executed by a settlor that contains terms of the trust, including any amendments to the trust.
(27) “Trustee” means the original trustee and includes any additional trustee, any successor trustee, and any cotrustee.
History of Fla. Stat. § 736.0103
Fla. Stat. § 736.0103 became law on July 1, 2007 as part of the Florida Trust Code. The definitions have been revised on four separate occasions since that date.
In 2009, the definition for “beneficiary” was amended.
In 2013, the definitions for “distributee” and “permissible distributee” were added.
In 2018, the phrase “intended by the settlor” was added to the definition of the term “interests of beneficiaries.”
In 2021, the terms “directed trust,” “directed trustee,” “power of direction,” and “trust director” were added to the definitions to support the Florida Uniform Directed Trust Act, which was also added to the Florida Trust Code in 2021. The definition of “terms of a trust” was also expanded in 2021.
This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.