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Charitable Trusts Under Florida’s Trust Code

Charitable Trusts Under Florida’s Trust Code

 

 

PART XII

CHARITABLE TRUSTS

 

736.1201 Definitions.
736.1202 Application of this part.
736.1203 Trustee of a private foundation trust or a split interest trust.
736.1204 Powers and duties of trustee of a private foundation trust or a split interest trust.
736.1205 Notice that this part does not apply.736.1206 Power to amend trust instrument.
736.1207 Power of court to permit deviation.
736.1208 Release; property and persons affected; manner of effecting.
736.1209 Election to come under this part.
736.1210 Interpretation.
736.1211 Protections afforded to certain charitable trusts and organizations.

736.1201 Definitions.—As used in this part:
(1) “Charitable organization” means an organization described in s. 501(c)(3) of the Internal Revenue Code and exempt from tax under s. 501(a) of the Internal Revenue Code.
(2) “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
(3) “Private foundation trust” means a trust, including a trust described in s. 4947(a)(1) of the Internal Revenue Code, as defined in s. 509(a) of the Internal Revenue Code.
(4) “Split interest trust” means a trust for individual and charitable beneficiaries that is subject to the provisions of s. 4947(a)(2) of the Internal Revenue Code.
(5) “State attorney” means the state attorney for the judicial circuit of the principal place of administration of the trust pursuant to s. 736.0108.

736.1202 Application of this part.—Except as otherwise provided in the trust, the provisions of this part apply to all private foundation trusts and split interest trusts, whether created or established before or after November 1, 1971, and to all trust assets acquired by the trustee before or after November 1, 1971.

736.1203 Trustee of a private foundation trust or a split interest trust.—Except as provided in s. 736.1205, the trustee of a private foundation trust or a split interest trust has the duties and powers conferred on the trustee by this part.

736.1204 Powers and duties of trustee of a private foundation trust or a split interest trust.—
(1) In the exercise of a trustee’s powers, including the powers granted by this part, a trustee has a duty to act with due regard to the trustee’s obligation as a fiduciary, including a duty not to exercise any power in such a way as to:
(a) Deprive the trust of an otherwise available tax exemption, deduction, or credit for tax purposes;
(b) Deprive a donor of a trust asset or tax deduction or credit; or
(c) Operate to impose a tax on a donor, trust, or other person.

For purposes of this subsection, the term “tax” includes, but is not limited to, any federal, state, or local excise, income, gift, estate, or inheritance tax.
(2) Except as provided in s. 736.1205, a trustee of a private foundation trust shall make distributions at such time and in such manner as not to subject the trust to tax under s. 4942 of the Internal Revenue Code.
(3) Except as provided in subsection (4) and in s. 736.1205, a trustee of a private foundation trust, or a split interest trust to the extent that the split interest trust is subject to the provisions of s. 4947(a)(2) of the Internal Revenue Code, in the exercise of the trustee’s powers shall not:
(a) Engage in any act of self-dealing as defined in s. 4941(d) of the Internal Revenue Code;
(b) Retain any excess business holdings as defined in s. 4943(c) of the Internal Revenue Code;
(c) Make any investments in a manner that subjects the foundation to tax under s. 4944 of the Internal Revenue Code; or
(d) Make any taxable expenditures as defined in s. 4945(d) of the Internal Revenue Code.
(4) Paragraphs (3)(b) and (c) shall not apply to a split interest trust if:
(a) All the income interest, and none of the remainder interest, of the trust is devoted solely to one or more of the purposes described in s. 170(c)(2)(B) of the Internal Revenue Code, and all amounts in the trust for which a deduction was allowed under s. 170, s. 545(b)(2), s. 556(b)(2), s. 642(c), s. 2055, s. 2106(a)(2), or s. 2522 of the Internal Revenue Code have an aggregate fair market value of not more than 60 percent of the aggregate fair market value of all amounts in the trust; or
(b) A deduction was allowed under s. 170, s. 545(b)(2), s. 556(b)(2), s. 642(c), s. 2055, s. 2106(a)(2), or s. 2522 of the Internal Revenue Code for amounts payable under the terms of the trust to every remainder beneficiary but not to any income beneficiary.

736.1205 Notice that this part does not apply.—In the case of a power to make distributions, if the trustee determines that the governing instrument contains provisions that are more restrictive than s. 736.1204(2), or if the trust contains other powers, inconsistent with the provisions of s. 736.1204(3) that specifically direct acts by the trustee, the trustee shall notify the state attorney when the trust becomes subject to this part. Section 736.1204 does not apply to any trust for which notice has been given pursuant to this section unless the trust is amended to comply with the terms of this part.

736.1206 Power to amend trust instrument.—
(1) In the case of a trust that is solely for a named charitable organization or organizations and for which the trustee does not possess any discretion concerning the distribution of income or principal among two or more such organizations, the trustee may amend the governing instrument to comply with the provisions of s. 736.1204(2) with the consent of the named charitable organization or organizations.
(2) In the case of a charitable trust that is not subject to the provisions of subsection (1), the trustee may amend the governing instrument to comply with the provisions of s. 736.1204(2) with the consent of the state attorney.

736.1207 Power of court to permit deviation.—This part does not affect the power of a court to relieve a trustee from any restrictions on the powers and duties that are placed on the trustee by the governing instrument or applicable law for cause shown and on complaint of the trustee, state attorney, or an affected beneficiary and notice to the affected parties.

736.1208 Release; property and persons affected; manner of effecting.—
(1) The trustee of a trust, all of the unexpired interests in which are devoted to one or more charitable purposes, may release a power to select charitable donees unless the creating instrument provides otherwise.
(2) The release of a power to select charitable donees may apply to all or any part of the property subject to the power and may reduce or limit the charitable organizations, or classes of charitable organizations, in whose favor the power is exercisable.
(3) A release shall be effected by a duly acknowledged written instrument signed by the trustee and delivered as provided in subsection (4).
(4) Delivery of a release shall be accomplished as follows:
(a) If the release is accomplished by specifying a charitable organization or organizations as beneficiary or beneficiaries of the trust, by delivery of a copy of the release to each designated charitable organization.
(b) If the release is accomplished by reducing the class of permissible charitable organizations, by delivery of a copy of the release to the state attorney.
(5) If a release is accomplished by specifying a public charitable organization or organizations as beneficiary or beneficiaries of the trust, the trust at all times thereafter shall be operated exclusively for the benefit of, and be supervised by, the specified public charitable organization or organizations.

736.1209 Election to come under this part.—With the consent of that organization or organizations, a trustee of a trust for the benefit of a public charitable organization or organizations may come under s. 736.1208(5) by filing with the state attorney an election, accompanied by the proof of required consent. Thereafter the trust shall be subject to s. 736.1208(5).

736.1210 Interpretation.—This part shall be interpreted to effectuate the intent of the state to preserve, foster, and encourage gifts to, or for the benefit of, charitable organizations.

736.1211 Protections afforded to certain charitable trusts and organizations.—
(1) A charitable organization, private foundation trust, split interest trust, or a private foundation as defined in s. 509(a) of the Internal Revenue Code may not be required by a state agency or a local government to disclose the race, religion, gender, national origin, socioeconomic status, age, ethnicity, disability, marital status, sexual orientation, or political party registration of its employees, officers, directors, trustees, members, or owners, without the prior written consent of the individual or individuals in question.
(2) A private foundation as defined in s. 509(a) of the Internal Revenue Code, a private foundation trust, a split interest trust, or a grant-making organization may not be required by the state or any local government to disclose the race, religion, gender, national origin, socioeconomic status, age, ethnicity, disability, marital status, sexual orientation, or political party registration of any person, or of the employees, officers, directors, trustees, members, or owners of any entity that has received monetary or in-kind contributions from or contracted with the organization, trust, or foundation, without the prior written consent of the individual or individuals in question. For purposes of this subsection, a “grant-making organization” is an organization that makes grants to charitable organizations but is not a private foundation, private foundation trust, or split interest trust.
(3) A state agency or a local government may not require that the governing board or officers of a charitable organization, private foundation trust, split interest trust, or a private foundation as defined in s. 509(a) of the Internal Revenue Code include an individual or individuals of any particular race, religion, gender, national origin, socioeconomic status, age, ethnicity, disability, marital status, sexual orientation, or political party registration. Further, a state agency or a local government may not prohibit service as a board member or officer by an individual or individuals based upon their familial relationship to each other or to a donor or require that the governing board or officers include one or more individuals who do not share a familial relationship with each other or with a donor.
(4) A charitable organization, private foundation trust, split interest trust, or any private foundation as defined in s. 509(a) of the Internal Revenue Code may not be required by a state agency or a local government to distribute its funds to or contract with any person or entity based upon the race, religion, gender, national origin, socioeconomic status, age, ethnicity, disability, marital status, sexual orientation, or political party registration of the person or of the employees, officers, directors, trustees, members, or owners of the entity, or based upon the populations, locales, or communities served by the person or entity, except as a lawful condition on the expenditure of particular funds imposed by the donor of such funds.