Florida Statutes 738.309 – Express unitrust
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(1) This section applies to a trust that, by its governing instrument, requires or allows income or net income to be calculated as a unitrust amount.
(2) The trustee of an express unitrust may determine the unitrust amount by reference to the net fair market value of the unitrust’s assets in 1 or more years.
(3) Distribution of a unitrust amount is considered a distribution of all of the net income of an express unitrust and is considered to be an income interest.
(4) The unitrust amount is considered to be a reasonable apportionment of the total return of an express unitrust.
(5) An express unitrust that provides or allows a distribution based on a unitrust rate in excess of 5 percent per year of the net fair market value of the unitrust assets is considered a distribution of all of the income of the unitrust and a distribution of principal of the unitrust to the extent that the distribution exceeds 5 percent per year.
(6) An express unitrust may provide a mechanism for changing the unitrust rate, similar to the mechanism provided under s. 738.306, based upon the factors noted in that section, and may provide for a conversion from a unitrust to an income trust or a reconversion of an income trust to a unitrust under s. 738.303.
(7) If an express unitrust does not specifically or by reference to s. 738.306 prohibit a power to change the unitrust rate or to convert to an income trust under s. 738.303, the trustee must have such power.
(8) The governing instrument of an express unitrust may grant the trustee discretion to adopt a consistent practice of treating capital gains as part of the unitrust amount to the extent that the unitrust amount exceeds the income determined as if the trust were not an express unitrust, or the governing instrument may specify the ordering of classes of income.
(9) Unless the terms of the express unitrust specifically provide otherwise as provided in subsection (8), the distribution of a unitrust amount is considered a distribution made from the following sources, which are listed in order of priority:
(a) Net accounting income determined under this chapter as if the trust were not a unitrust;
Terms Used In Florida Statutes 738.309
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- 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. See Florida Statutes 738.102
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Income: means money or other property a fiduciary receives as current return from principal. See Florida Statutes 738.102
- 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. See Florida Statutes 738.102
- 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. See Florida Statutes 738.102
- Personal property: All property that is not real property.
- Principal: means property held in trust for distribution to, production of income for, or use by a current or successor beneficiary. See Florida Statutes 738.102
- 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. See Florida Statutes 738.102
- Trustee: A person or institution holding and administering property in trust.
- Trustee: means a person, other than a personal representative, that owns or holds property for the benefit of a beneficiary. See Florida Statutes 738.102
(b) Ordinary income not allocable to net accounting income;
(c) Net realized short-term capital gains;
(d) Net realized long-term capital gains; and
(e) The principal of the trust.
(10) The governing instrument of an express unitrust may provide that the trustee may exclude assets used by the unitrust’s beneficiary, including, but not limited to, a residence property or tangible personal property, from the net fair market value of the unitrust’s assets for the purposes of computing the unitrust amount. The use of these assets may be considered equivalent to income or to the unitrust amount.