Fla. Stat. § 736.0109 - Commentary to Florida Trust Code
Legal Commentary on Fla. Stat. § 736.0109
Fla. Stat. § 736.0109 establishes how notice may be provided or waived under the Florida Trust Code. This is an important section for trustees, who are frequently required to notify qualified beneficiaries of various matters. For example, under Fla. Stat. § 736.0813(1)(a) and (b), a trustee must notify the qualified beneficiaries of an irrevocable trust of the existence of the trust, of the identity of the trustee, and of their rights to trust accountings.
Subsection (1) establishes that notice must be accomplished “in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document.” Thus, there is no one way to notify someone under the Florida Trust Code. Notice could theoretically be delivered in any number of creative ways. However, multiple “permissible” methods are listed. The commentary to the Uniform Trust Codes notes that these “permissive methods” are “illustrative, not exhaustive.” However, a wise trustee will use one of the listed methods to ensure compliance with the statute section.
Subsection (2) provides that no notice is required to be sent to those “whose identity or location is unknown to and not reasonably ascertainable by the trustee.” Thus, a trustee is not required to go to unreasonable lengths to notify someone.
Subsection (3) applies only to notification by means of posting “on an electronic account or website.” The goal here is to govern corporate trustees (such as banks) who may seek to notify beneficiaries via updates to an online portal to which the beneficiary has access. Should a trustee choose to notify someone through this method, the many requirements of subsection (3) must be followed, including obtaining from the recipient “a separate written authorization solely for the purpose of authorizing the sender to post documents on an electronic account or website before such posting.”
Subsection (4) applies only to a trustee which is a family trust company, licensed family trust company, or foreign licensed family trust company, as defined in Fla. Stat. § 662.111. For those trustees, notice may be sent via an email containing the attached notice or via the emailing of a link by which the recipient can view the notice. If a username or password is required to view the notice via link, that username and password (and any other necessary instructions) must be communicated to the recipient upon the request of the recipient, in advance of the email, or at the same time that the email is sent.
Subsection (5) applies to any notice sent “electronically,” which appears to be a reference to email. However, this section could also potentially apply to text messages, digital audio messages, or voicemails. The message is presumed received on the date the message is sent, unless the sender has knowledge that the message did not reach the recipient. According to Fla. Stat. § 736.0104, having knowledge includes being notified or having reason to know from the facts and circumstances. Thus, if an email bounces back as being undeliverable, the sender likely has knowledge that the notice was not received.
Subsection (6) provides that notice can be waived by the required recipient. The method of waiver is not specified. Thus, a wise trustee will insist that such waiver be provided in writing before relying on said waiver.
Subsection (7) provides that the Florida Rules of Civil Procedure govern notice and service under any judicial proceeding. Thus, the legislature is not attempting to overrule the Florida Supreme Court and her Rules of Civil Procedure. Rather, the notice rules in Fla. Stat. § 736.0109 apply to notices made outside of an active litigation context.
Text of Fla. Stat. § 736.0109
Methods and waiver of notice.—
(1) Notice to a person under this code or the sending of a document to a person under this code must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document. Permissible methods of notice or for sending a document include first-class mail, personal delivery, delivery to the person’s last known place of residence or place of business, a properly directed facsimile or other electronic message, including e-mail, or posting on a secure electronic account or website in accordance with subsection (3).
(2) Notice otherwise required under this code or a document otherwise required to be sent under this code need not be provided to a person whose identity or location is unknown to and not reasonably ascertainable by the trustee.
(3) A document that is sent solely by posting on an electronic account or website is not deemed sent for purposes of this section unless the sender complies with this subsection. The sender has the burden of proving compliance with this subsection.
(a) The recipient must sign a separate written authorization solely for the purpose of authorizing the sender to post documents on an electronic account or website before such posting. The written authorization must:
1. Specifically indicate whether a trust accounting, trust disclosure document, or limitation notice, as those terms are defined in s. 736.1008(4), will be posted in this manner, and generally enumerate the other types of documents that may be posted in this manner.
2. Contain specific instructions for accessing the electronic account or website, including the security procedures required to access the electronic account or website, such as a username and password.
3. Advise the recipient that a separate notice will be sent when a document is posted on the electronic account or website and the manner in which the separate notice will be sent.
4. Advise the recipient that the authorization to receive documents by electronic posting may be amended or revoked at any time and include specific instructions for revoking or amending the authorization, including the address designated for the purpose of receiving notice of the revocation or amendment.
5. Advise the recipient that posting a document on the electronic account or website may commence a limitations period as short as 6 months even if the recipient never actually accesses the electronic account, electronic website, or document.
(b) Once the recipient signs the written authorization, the sender must provide a separate notice to the recipient when a document is posted on the electronic account or website. As used in this subsection, the term “separate notice” means a notice sent to the recipient by means other than electronic posting, which identifies each document posted to the electronic account or website and provides instructions for accessing the document. The separate notice requirement is deemed satisfied if the recipient accesses the document on the electronic account or website.
(c) A document sent by electronic posting is deemed received by the recipient on the earlier of the date on which the separate notice is received or the date on which the recipient accesses the document on the electronic account or website.
(d) At least annually after a recipient signs a written authorization, a sender shall send a notice advising recipients who have authorized one or more documents to be posted on an electronic account or website that such posting may commence a limitations period as short as 6 months even if the recipient never accesses the electronic account or website or the document and that authority to receive documents by electronic posting may be amended or revoked at any time. This notice must be given by means other than electronic posting and may not be accompanied by any other written communication. Failure to provide such notice within 380 days after the last notice is deemed to automatically revoke the authorization to receive documents in the manner permitted under this subsection 380 days after the last notice is sent.
(e) The notice required in paragraph (d) may be in substantially the following form: “You have authorized the receipt of documents through posting on an electronic account or website on which the documents can be accessed. This notice is being sent to advise you that a limitations period, which may be as short as 6 months, may be running as to matters disclosed in a trust accounting or other written report of a trustee posted to the electronic account or website even if you never actually access the electronic account or website or the documents. You may amend or revoke the authorization to receive documents by electronic posting at any time. If you have any questions, please consult your attorney.”
(f) A sender may rely on the recipient’s authorization until the recipient amends or revokes the authorization by sending a notice to the address designated for that purpose in the authorization or in the manner specified on the electronic account or website. The recipient, at any time, may amend or revoke an authorization to have documents posted on the electronic account or website.
(g) If a document is provided to a recipient solely through electronic posting pursuant to this subsection, the recipient must be able to access and print or download the document until the earlier of 4 years after the date that the document is deemed received by the recipient or the date upon which the recipient’s access to the electronic account or website is terminated for any reason.
1. If the recipient’s access to the electronic account or website is terminated for any reason, such termination does not invalidate the notice or sending of any document previously posted on the electronic account or website in accordance with this subsection, but may toll the applicable limitations period as provided in subparagraph 2.
2. If the recipient’s access to the electronic account or website is terminated by the sender sooner than 4 years after the date on which the document was received by the recipient, any applicable limitations period set forth in s. 736.1008(1) or (2) which is still running is tolled for any information adequately disclosed in a document sent solely by electronic posting, from the date on which the recipient’s access to the electronic account or website was terminated by the sender until 45 days after the date on which the sender provides one of the following to the recipient by means other than electronic posting:
a. Notice of such termination and notification to the recipient that he or she may request that any documents sent during the prior 4 years solely through electronic posting be provided to him or her by other means at no cost; or
b. Notice of such termination and notification to the recipient that his or her access to the electronic account or website has been restored.
Any applicable limitations period is further tolled from the date on which any request is made pursuant to sub-subparagraph 2.a. until 20 days after the date on which the requested documents are provided to the recipient by means other than electronic posting.
(h) For purposes of this subsection, access to an electronic account or website is terminated by the sender when the sender unilaterally terminates the recipient’s ability to access the electronic website or account or to download or print any document posted on such website or account. Access is not terminated by the sender when access is terminated by an action of the recipient or by an action of the sender in response to the recipient’s request to terminate access. The recipient’s revocation of authorization pursuant to paragraph (f) is not considered a request to terminate access.
(i) This subsection does not affect or alter the duties of a trustee to keep clear, distinct, and accurate records pursuant to s. 736.0810 or affect or alter the time periods for which the trustee must maintain such records.
(j) This subsection governs the posting of a document solely for the purpose of giving notice under this code or the sending of a document to a person under this code and does not prohibit or otherwise apply to the posting of a document on an electronic account or website for any other purpose or preclude the sending of a document by any other means.
(4) Notwithstanding subsection (3), a family trust company, licensed family trust company, or foreign licensed family trust company, as defined in s. 662.111, that is a trustee of a trust may use any permissible method for providing notice or for sending a document specified in subsection (1) or may send a properly directed e-mail that contains an attached notice or document or contains a hyperlink through which the recipient can view the notice or document as a permissible method of providing notice or sending a document. For purposes of this subsection, such notice or document sent by e-mail is deemed to have been sent if any username, password, or other specific instructions needed to access the notice or document are communicated to the recipient beforehand or contemporaneously with the sending of the e-mail message containing the notice, document, or hyperlink, or upon the request of the recipient.
(5) Notice to a person under this code, or the sending of a document to a person under this code electronically, is complete when sent.
(a) An electronic message is presumed received on the date that the message is sent.
(b) If the sender has knowledge that an electronic message did not reach the recipient, the electronic message is deemed to have not been received. The sender has the burden to prove that another copy of the notice or document was sent by electronic message or by other means authorized by this section.
(6) Notice under this code or the sending of a document under this code may be waived by the person to be notified or to whom the document is to be sent.
(7) Notice and service of documents in a judicial proceeding are governed by the Florida Rules of Civil Procedure.
History of Fla. Stat. § 736.0109
Fla. Stat. § 736.0109 became law in 2007. It was heavily based on § 109 of the Uniform Trust Code. The original Fla. Stat. § 736.0109 read:
Methods and waiver of notice.--
(1) Notice to a person under this code or the sending of a document to a person under this code must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document. Permissible methods of notice or for sending a document include first-class mail, personal delivery, delivery to the person's last known place of residence or place of business, or a properly directed facsimile or other electronic message.
(2) Notice otherwise required under this code or a document otherwise required to be sent under this code need not be provided to a person whose identity or location is unknown to and not reasonably ascertainable by the trustee.
(3) Notice under this code or the sending of a document under this code may be waived by the person to be notified or to whom the document is to be sent.
(4) Notice of a judicial proceeding must be given as provided in the Florida Rules of Civil Procedure.
In 2015, Fla. Stat. § 736.0109 was significantly amended, including the addition of a subsection to address electronic notice via secure electronic account or website and a separate subsection to address electronic messages.
In 2018, Fla. Stat. § 736.0109 was amended again, primarily with an expansion of the subsection regarding notice via secure electronic account or website.
In 2022, Fla. Stat. § 736.0109 was amended to add what is now subsection (4), regarding scenarios in which a trustee is a family trust company, licensed family trust company, or foreign licensed family trust company. This was the most recent amendment.
This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.