Trust Investments Under Florida’s Trust Code
736.0901 Applicability of chapter 518.
736.0902 Nonapplication of prudent investor rule.
736.0901 Applicability of chapter 518.—A trustee shall invest trust property in accordance with chapter 518.
736.0902 Nonapplication of prudent investor rule.—
(1) Notwithstanding the provisions of s. 518.11 or s. 736.0804, with respect to any contract for life insurance acquired or retained on the life of a qualified person, a trustee has no duty to:
(a) Determine whether the contract of life insurance is or was procured or effected in compliance with s. 627.404;
(b) Determine whether any contract of life insurance is, or remains, a proper investment;
(c) Investigate the financial strength of the life insurance company;
(d) Determine whether to exercise any policy option available under the contract for life insurance;
(e) Diversify any such contract for life insurance or the assets of the trust with respect to the contract for life insurance; or
(f) Inquire about or investigate the health or financial condition of any insureds.
(2) For purposes of this section, a “qualified person” is a person who is insured or a proposed insured, or the spouse of that person, who has provided the trustee with the funds used to acquire or pay premiums with respect to a policy of insurance on the life of that person or the spouse of that person, or on the lives of that person and the spouse of that person.
(3) The trustee is not liable to the beneficiaries of the trust or any other person for any loss sustained with respect to a contract for life insurance to which this section applies.
(4) Unless otherwise provided in the trust instrument, paragraph (1)(a) applies to any contract for life insurance on the life of a qualified person.
(5) Unless otherwise provided in the trust instrument, paragraphs (1)(b)-(f) apply if:
(a) The trust instrument, by reference to this section, makes this section applicable to contracts for life insurance held by the trust; or
(b) The trustee gives notice that this section applies to a contract for life insurance held by the trust.
1. The notice of the application of this section shall be given to the qualified beneficiaries and shall contain a copy or restatement of this section.
2. Notice given pursuant to any of the provisions of part III of this chapter to a person who represents the interests of any of the persons set forth in subparagraph 1. shall be treated as notice to the person so represented.
3. Notice shall be given in the manner provided in s. 736.0109.
4. If any person notified pursuant to this paragraph delivers a written objection to the application of this section to the trustee within 30 days after the date on which the objector received such notice, paragraphs (1)(b)-(f) shall not apply until the objection is withdrawn.
5. There shall exist a rebuttable presumption that any notice sent by United States mail is received 3 days after depositing the notice in the United States mail system with proper postage prepaid.
(6) This section does not apply to any contract for life insurance purchased from any affiliate of the trustee, or with respect to which the trustee or any affiliate of the trustee receives any commission unless the duties have been delegated to another person in accordance with s. 518.112. For purposes of this subsection, an “affiliate” is any person who controls, is controlled by, or is under common control with the trustee.
(7) Paragraph (1)(a) does not apply if the trustee applied for or accepted ownership of a contract of life insurance and the trustee had knowledge that:
(a) The benefits were not payable to a person specified in s. 627.404 when the contract of life insurance was issued; or
(b) The contract of life insurance is or was purchased with resources or guarantees directly or indirectly provided by a person who, at the time of the inception of such contract, did not have an insurable interest in the insured as defined by s. 627.404, and, at the time of the inception of such contract, there is a verbal or written arrangement, agreement, or plan with a third party to transfer ownership of the policy or policy benefits in a manner that would be in violation of state law.
(8) A trustee who performs fiduciary or advisory services related to a policy of life insurance to which subsection (1) applies shall not be compensated for performing the applicable service to which subsection (1) applies.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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