Section 738.102 - [Effective 1/1/2025] DefinitionsAs used in this chapter, the term:
(1) "Accounting period" means a calendar year unless a fiduciary selects another period of 12 calendar months or approximately 12 calendar months. The term includes a part of a calendar year or another period of 12 calendar months or approximately 12 calendar months which begins or ends when an income interest ends.(2) "Asset-backed security," as provided in s. 738.415, means a security that is serviced primarily by the cash flows of a discrete pool of fixed or revolving receivables or other financial assets that by their terms convert to cash within a finite time. The term includes rights or other assets that ensure the servicing or timely distribution of proceeds to the holder of the asset-backed security. The term does not include an asset to which s. 738.401, s. 738.409, or s. 738.414 applies.(3) "Beneficiary" includes: (a) For a trust: 1. A current beneficiary, including a current income beneficiary and a beneficiary that may receive only principal;2. A remainder beneficiary; and3. Any other successor beneficiary;(b) For an estate, an heir, and a devisee; and(c) For a life estate or term interest, a person who holds a life estate, a term interest, or a remainder or other interest following a life estate or term interest. (4) "Carrying value" means the fair market value at the time the assets are received by the fiduciary. For an estate and for a trust described in s. 733.707(3), after the settlor's death, the assets are considered received as of the date of the settlor's death. If there is a change in fiduciaries, a majority of the continuing fiduciaries may elect to adjust the carrying values to reflect the fair market value of the assets at the beginning of their administration. If such election is made, it must be reflected on the first accounting filed after the election. For assets acquired during the administration of the estate or trust, the carrying value is equal to the acquisition costs of the asset. Carrying value of assets should not be arbitrarily "written up" or "written down." In some circumstances, including, but not limited to, those described in ss. 738.410 and 738.602, carrying value may be adjusted with proper disclosure to reflect changes in carrying value applied in a consistent manner.(5) "Court" means a circuit court of this state.(6) "Current income beneficiary" means a beneficiary to which a fiduciary may or must distribute net income, regardless of whether the fiduciary also distributes principal to the beneficiary.(7) "Distribution" means a payment or transfer by a fiduciary to a beneficiary in the beneficiary's capacity as a beneficiary, without consideration other than the beneficiary's right to receive the payment or transfer under the terms of the trust as defined in this section, will, life estate, or term interest. "Distribute," "distributed," and "distributee" have corresponding meanings.(8) "Estate" means a decedent's estate, including the property of the decedent as the estate is originally constituted and the property of the estate as it exists at any time during administration.(9) "Fiduciary" includes a trustee, a trust director as defined in s. 736.0103, or a personal representative, and a person acting under a delegation from a fiduciary . The term also includes a person that holds property for a successor beneficiary whose interest may be affected by an allocation of receipts and expenditures between income and principal. If there are two or more cofiduciaries, the term includes all cofiduciaries acting under the terms of the trust and applicable law.(10) "Income" means money or other property a fiduciary receives as current return from principal . The term includes a part of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in ss. 738.401 - 738.416 . (11) "Income interest" means the right of a current income beneficiary to receive all or part of net income, whether the terms of the trust require the net income to be distributed or authorize the net income to be distributed in the fiduciary's discretion. The term includes the right of a current beneficiary to use property held by a fiduciary.(12) "Independent person" means a person who is not: (a) For a trust: 1. A qualified beneficiary as defined in s. 736.0103;2. A settlor of the trust;3. An individual whose legal obligation to support a beneficiary may be satisfied by a distribution from the trust; or4. Any trustee whom an interested distributee has the power to remove and replace with a related or subordinate party.(b) For an estate, a beneficiary;(c) A spouse, a parent, a brother, a sister, or an issue of an individual described in paragraph (a) or paragraph (b);(d) A corporation, a partnership, a limited liability company, or another entity in which persons described in paragraphs (a), (b), and (c), in the aggregate, have voting control; or(e) An employee of a person described in paragraph (a), paragraph (b), paragraph (c), or paragraph (d).(13) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended.(14) "Mandatory income interest" means the right of a current income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.(15) "Net income" means the total allocations during an accounting period to income under the terms of a trust and this chapter minus the disbursements during the period, other than distributions, allocated to income under the terms of the trust and this chapter. To the extent that the trust is a unitrust under ss. 738.301 - 738.310, the term means the unitrust amount determined under ss. 738.301 - 738.310. The term includes the amount of an adjustment from principal to income under s. 738.203. The term does not include the amount of an adjustment from income to principal under s. 738.203 .(16) "Person" means an individual, a business or a nonprofit entity, an estate, a trust, a public corporation, a government or governmental subdivision, agency, or instrumentality, or other legal entity.(17) "Personal representative" means an executor, an administrator, a successor personal representative, a special administrator, or a person that performs substantially the same function with respect to an estate under the law governing the person's status.(18) "Principal" means property held in trust for distribution to, production of income for, or use by a current or successor beneficiary .(19) "Record" means information inscribed on a tangible medium or stored in an electronic or other medium and is retrievable in perceivable form.(20) "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, the term includes each person, to the extent of the trust property attributable to that person's contribution, except to the extent that another person has the power to revoke or withdraw that portion.(21) "Special tax benefit" means: (a) Exclusion of a transfer to a trust from gifts described in s. 2503(b) of the Internal Revenue Code because of the qualification of an income interest in the trust as a present interest in property;(b) Status as a qualified subchapter S trust described in s. 1361(d)(3) of the Internal Revenue Code at a time the trust holds stock of an S corporation described in s. 1361(a)(1) of the Internal Revenue Code;(c) An estate or gift tax marital deduction for a transfer to a trust under s. 2056 or s. 2523 of the Internal Revenue Code which depends or depended in whole or in part on the right of the settlor's spouse to receive the net income of the trust;(d) Exemption in whole or in part of a trust from the federal generation-skipping transfer tax imposed by s. 2601 of the Internal Revenue Code because the trust was irrevocable on September 25, 1985, if there is any possibility that: 1. A taxable distribution as defined in s. 2612(b) of the Internal Revenue Code could be made from the trust; or2. A taxable termination as defined in s. 2612(a) of the Internal Revenue Code could occur with respect to the trust; or(e) An inclusion ratio as defined in s. 2642(a) of the Internal Revenue Code of the trust which is less than one, if there is any possibility that:1. A taxable distribution as defined in s. 2612(b) of the Internal Revenue Code could be made from the trust; or2. A taxable termination as defined in s. 2612(a) of the Internal Revenue Code could occur with respect to the trust.(22) "Successive interest" means the interest of a successor beneficiary.(23) "Successor beneficiary" means a person entitled to receive income or principal or to use property when an income interest or other current interest ends.(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 will or trust instrument; or2. Established by other evidence that would be admissible in a judicial proceeding.(b) The trust's provisions as established, determined, or amended by:1. A trustee or trust director in accordance with the applicable law;3. A nonjudicial settlement agreement under s. 736.0111.(c) For an estate, a will; or(d) For a life estate or term interest, the corresponding manifestation of the rights of the beneficiaries to the extent provided in s. 738.508 .(25) "Trust" includes an express trust, whether private or charitable, with additions to the trust, wherever and however created; and a trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust. The term does not include a constructive trust; a resulting trust; a conservatorship; a custodial arrangement under the Florida Uniform Transfers to Minors Act; a business trust providing for certificates to be issued to beneficiaries; a common trust fund; a land trust under s. 689.071; a trust created by the form of the account or by the deposit agreement at a financial institution; a voting trust; a security arrangement; a liquidation trust; a trust for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, retirement benefits, or employee benefits of any kind; or an arrangement under which a person is a nominee, an escrowee, or an agent for another.(26) "Trustee" means a person, other than a personal representative, that owns or holds property for the benefit of a beneficiary. The term includes an original, additional, or successor trustee, regardless of whether they are appointed or confirmed by a court.(27) "Will" means any testamentary instrument recognized under applicable law which makes a legally effective disposition of an individual's property, effective at the individual's death. The term includes a codicil or other amendment to a testamentary instrument. s.1, ch. 2002-42; s.2, ch. 2012-49.Amended by 2024 Fla. Laws, ch. 216,s 2, eff. 1/1/2025.This section is set out more than once due to postponed, multiple, or conflicting amendments.