738.13  Charges against income and principal.--

(1)  The following charges shall be made against income:

(a)  Ordinary expenses incurred in connection with the administration, management, or preservation of the trust property, including regularly recurring taxes assessed against any part of the principal; water rates; premiums on insurance taken upon the interests of the income beneficiary, remainderman, or trustee; interest paid by the trustee, except interest or penalties on estate or other death taxes; and ordinary repairs.

(b)  Only when specifically required by the instrument, a reasonable allowance for depreciation on property subject to depreciation under accounting principles, but no allowance shall be made for depreciation of that part of any real property used by a beneficiary as a residence or for depreciation of any property held by the trustee on January 1, 1976, for which the trustee is not then making an allowance for depreciation.

(c)  One-half of court costs, attorney's fees, and fees on periodic judicial accounting, unless the court directs otherwise.

(d)  Court costs, attorney's fees, and other fees on other accountings or judicial proceedings if the matter primarily concerns the income interest, unless the court directs otherwise.

(e)  One-half of the trustee's regular compensation, whether based on a percentage of principal or income, and all expenses reasonably incurred for current management of principal and application of income.

(f)  Any tax levied upon receipts defined as income under this chapter or the trust instrument and payable by the trustee.

(2)  If charges against income are of unusual amount, the trustee may charge them over a reasonable period of time, by means of reserves or other reasonable means, and withhold from distribution sufficient sums to regularize distributions.

(3)  The following charges shall be made against principal:

(a)  Trustee's compensation not chargeable to income under paragraphs (1)(d) and (e), special compensation of trustees, expenses reasonably incurred in connection with principal, court costs and attorney's fees primarily concerning matters of principal, and trustee's compensation computed on principal as an acceptance, distribution, or termination fee.

(b)  Charges not provided for in subsection (1), including the cost of investing and reinvesting principal; the payments on principal of an indebtedness, including a mortgage amortized by periodic payments of principal; expenses for preparation of property for rental or sale; and, unless the court directs otherwise, expenses incurred in maintaining or defending any action to construe the trust, protect it or the property, or assure the title of any trust property.

(c)  Extraordinary repairs or expenses incurred in making a capital improvement to principal, including special assessments; but a trustee may establish an allowance for depreciation out of income to the extent permitted by paragraph (1)(b) and by s. 738.08.

(d)  Any tax levied upon profit, gain, or other receipts allocated to principal, notwithstanding denomination of the tax as an income tax by the taxing authority.

(e)  If an estate or inheritance tax is levied in respect of a trust in which both an income beneficiary and a remainderman have an interest, any amount apportioned to the trust, other than penalties and interest thereon, even though the income beneficiary also has rights in the principal. Unless otherwise provided in the trust instrument, any interest or penalties attributable to such estate or inheritance taxes and paid by the trust shall be charged against either the income or principal of the trust in the sole discretion of the trustee.

(4)  Regularly recurring charges payable from income shall be apportioned to the same extent and in the same manner that income is apportioned under s. 738.04.

History.--s. 1, ch. 74-106; s. 18, ch. 75-221; s. 2, ch. 79-343.

Note.--Created from former s. 690.13.