The ordinary part
Subsection (1) sets a standard and then gives examples. Notice must be given in a manner reasonably suitable under the circumstances and likely to result in receipt, and permissible methods include first class mail, personal delivery, delivery to a last known place of residence or business, a properly directed fax or other electronic message including email, and posting on a secure electronic account or website under subsection (3).
Two shorter provisions round it out. Notice need not go to a person whose identity or location is unknown and not reasonably ascertainable by the trustee. And notice may be waived by the person entitled to it. Notice in an actual lawsuit is governed by the Florida Rules of Civil Procedure instead.
Subsection (3), which deserves more attention than it gets
A trustee may discharge notice duties by putting documents on a website. The statute surrounds that with conditions, and it opens by putting the risk on the trustee. A document posted only to a website is not deemed sent unless the sender complies, and the sender has the burden of proving compliance.
The authorization has to be separate, in writing, signed before any posting, and it must say five things. It must indicate whether accountings, trust disclosure documents or limitation notices will be posted this way. It must give access instructions including security procedures. It must explain that a separate notice will be sent each time something is posted, and how. It must explain how to revoke or amend the authorization. And it must contain this warning.
Advise the recipient that posting a document on the electronic account or website may commence a limitations period as short as 6 months even if the recipient never actually accesses the electronic account, electronic website, or document.
Section 736.0109(3)(a)5, Florida Statutes.
That is the whole point of the subsection, stated by the Legislature itself. The six month period is the one in section 736.1008, which starts when a trust disclosure document with a limitation notice reaches a beneficiary. This section lets it reach you by appearing on a website.
The protections built around it
The statute does not leave it there, and the counterweights are worth knowing because they are the arguments available if this ever matters to you.
A separate notice, by other means, every time. Posting alone is not enough. The trustee must tell you, by something other than the posting itself, that a document has been posted, identify it, and say how to get at it.
Receipt is defined. A posted document is deemed received on the earlier of the date the separate notice is received or the date you actually access the document.
An annual reminder, or the authorization dies. At least once a year the sender must send a notice, again by other means, repeating the six month warning and reminding you that you can revoke. The statute even supplies suggested wording. Miss it and the consequence is automatic.
Failure to provide such notice within 380 days after the last notice is deemed to automatically revoke the authorization to receive documents in the manner permitted under this subsection 380 days after the last notice is sent.
Section 736.0109(3)(d), Florida Statutes.
Four years of access. Documents provided only by posting must remain accessible and printable for four years, or until access ends. And if the sender cuts off access early, detailed tolling rules suspend the running of the limitations period.
Revocation at any time. You can withdraw the authorization whenever you like.
No Florida court has construed this section
A search returns five documents. Every one of them was decided before July 1, 2007, when the Trust Code took effect, so none can be citing this section. They are employment and civil rights cases from 1992, 1993, 1994, 1998, and one from May 2007, less than two months before the Code began.
So the answer is that this section, which can shorten a beneficiary’s time to complain to six months, has never been interpreted by a Florida court. Several questions are therefore open, including what happens when the separate notice is sent but not received, how strictly the five required contents of the authorization are read, and whether an authorization missing one of them is void or merely voidable.
We publish that as a finding rather than leaving the section unwritten. A statute with no case law is not a statute without consequences.
If you are being asked to sign one of these
Read it against the five requirements above. An authorization that does not warn you about the six month period, in terms, is not what the statute describes.
If you already signed one and have stopped receiving the annual reminder, work out when the last one arrived. At 380 days the authorization revokes itself, and posting after that is not notice.
And if you would simply rather have paper, say so. The right to revoke is unqualified and immediate.