RPPTL Section takes a number of legislative positions RPPTL Section takes a number of legislative positions January 15, 2003 Notices Gearing up for the 2003 regular session of the Florida Legislature, the Real Property, Probate, and Trust Law Section has gotten more than a score of legislative position authorized by the Bar Board of Governors.The board acted at its December meeting, following Legislation Committee review of positions ranging from education requirements for guardians to handling military wills.The positions are:• General power of personal representative – Homestead reimbursement – F.S. §733.608. Supports legislation to amend F. S. §733.608 to insert guidance for the personal representative in deciding whether to expend money or effort to maintain or preserve the homestead during an estate administration, with additional protections for the personal representative such as a lien on the homestead in certain instances, and further guidance re lien enforcement, reimbursement of expenses, termination of collection efforts, and protection for not taking control of the homestead in the first instance.• Notice to Decedent’s Creditors – Filing of Claims – F.S. §733.2121( 1). Supports legislation to amend F.S. §733.2121(1) to delete the requirement that any notice to creditors state that claims must be filed against the estate within the two-year time period set forth in F.S. §733.710.• Probate code revision of 2001 – Glitch fix – F.S. §732.101(29) & F.S. §735.2063(2). Supports legislation to amend F.S. §§732.101(29) & 735.2063(2) to fix typographical errors in the Probate Code Revision of 2001, respectively relating to the definition of “protected homestead” and regarding proof of publication of the notice to creditors.• Elective share of surviving spouse – community property – application – Glitch fix – F.S. §732.217(2). Supports legislation to amend F. S. §732.217(2) to strike the exception of homestead property from the application of the Florida Uniform Disposition of Community Property Rights at Death Act.• Antilapse; deceased devisee; class gifts – F.S. §732.603. Supports legislation to amend F.S. §732.603(1) & (2) to address gaps in coverage concerning beneficiaries deemed to predecease a decedent by operation of law.• Conflict of Interest – Trustees vs. Beneficiaries – Pour-Over / Testamentary Trusts – F.S. §§731.201(2),(9) & (21), 731.212(1), 731.303. Supports legislation to amend F.S. §§731.201(2),(9) & (21), 731.212(1) & 731.303 for clarification in determining when a trustee of a trust in a pour-over or testamentary trust arrangement is the beneficiary of the estate or, in the alternative, the beneficiaries of the trust are the beneficiaries of the estate.• Probate of notarial will – F.S. §732.205. Supports legislation to amend F.S. §732.205(1) to allow the probate of a foreign notarial will authenticated according to the requirements of the Hague Convention of 1961.• Disaster – Proof of Death – F.S. §731.103(3). Supports legislation to amend F.S. §731.103(3) to add evidence of exposure to a “specific peril” as a basis for presuming death, with particular venue provisions for petitioning for such a determination.• Guardian’s and attorney’s fees and expenses – F.S. §744.108(8). Supports legislation to amend F.S. §744.108(8) to achieve greater consistency among state law relating to guardian’s and attorney’s fees and expenses, changing the phrase “request for fees” to “ requested compensation.”• Power of guardian without court approval – F.S. §744.444(16). Supports legislation to amend §744.444(16) to allow a guardian, without court approval, to pay from the assets of the guardianship estate the costs and fees of persons — including attorneys, auditors, investment advisers or agents — employed by the guardian to advise or assist the guardian in the performance of his/her duties.• Involuntary placement – F.S. §394.467. Supports legislation to amend §394.467 to add as criteria for involuntary placement the substantial and imminent likelihood of inflicting serious emotional or psychological harm on another person, and the causation of significant damage to property in the recent past with substantial and imminent likelihood of doing so again.• Guardian education requirements – F.S. §744.3145. Supports legislation to amend F.S. §744.3145 to streamline the educational requirements for parents appointed as guardians of the property of their minor children.• Costs & Attorneys’s Fees & Improper Exercise of Power/Breach of Fiduciary Duty – F.S. §§737.627 & 733.609. Supports legislation to amend §§737.627 & 733.609 to clarify that taxable costs and attorneys’ fees for breach of a personal representative’s fiduciary duty or failure of a trustee to properly exercise powers may come from direct payment from a party’s interest in the trust or estate, or from other property of the party, or both. • Exemption of Assets – Educational Savings Accounts & Prepaid Tuition Programs – F.S. §222.22. Supports legislation to amend F.S. §222.22 to exempt from legal process all qualified tuition programs authorized by §529 of the Internal Revenue Code and all Coverdell Education Savings Accounts.• Roads presumed to be dedicated – F.S. §95.361. Supports legislation to amend F.S. §95.361 so that, when any road has been maintained or repaired for 7 years by a state or local government, it shall be deemed to be dedicated to the public.• Meetings of homeowners’ associations; voting & elections procedures – F.S. §720.306. Supports legislation to amend F.S. §720.306 and confirm that members of residential homeowners’ association communities may amend their covenants, by specifying the process for changes in voting rights or increases in assessment proportions without a member’s approval.• Construction contracts; limitation on indemnification – F.S. §725.06. Supports legislation to amend F.S. §725.06 to make contracts for indemnity for acts of omissions of an indemnitee unenforceable except in certain limited situations and/or to the extent of insurance coverage.• Domestication of foreign not for profit corporations – F.S. §617.1801. Supports legislation to amend §617.1801 to amend the Florida Not For Profit Corporations act to permit domestication of a foreign not-for-profit corporation. • Antilapse; deceased trust beneficiary; class gifts – F.S. §737.603. Supports legislation to create F.S. §737.603 -Trust Antilapse – to prevent a lapse of beneficial interests in an inter vivos trust under certain circumstances, consistent with similar protections in F.S. §732.603 with regard to testamentary trusts.• Application of Civil Rules to Trust Proceedings – F.S. §§737.204,. 404, &. 627. Supports legislation to amend F.S.§§737.204,. 404, &. 627 to clarify that the rules of civil procedure apply to trust proceedings.• Execution of wills – military testamentary instruments – F.S. §732.502. Supports legislation to amend F.S. §732.502 so that a military testamentary instrument in accordance with 10 U.S.C. §1044b by a person who is eligible for military legal assistance is valid as a will in this state.