TRUST

Some people use trusts to provide for the distribution of their assets at death, or during life, rather than a will. The trustee named in the trust document typically handles the administration of the trust after the death of the maker of the trust (formally called the “grantor” or “settlor”) of the trust. Other than avoiding the Florida probate process, the same principals of law apply to the administration of trusts in Florida as are applicable to wills.

A Florida trust that is used to provide for the distribution of assets after death must be signed with the same formalities as a will. The grantor or settlor is subject to the same requirements for legal capacity, competence, and being free of undue influence, as a person making a will. The language of a trust document, just as with a will, may be subject to varying interpretations. The trust document is also subject to Florida’s elective share statute. The trustee of a trust owes the beneficiaries of the trust the same fiduciary duty that a personal representative owes to the heirs and beneficiaries of a probate estate.

How We Can Help

The lawyers at David Di Pietro & Associates are experienced in the representation of trustees, beneficiaries, or others, who may challenge a trust, the actions of a trustee for any legally recognizable cause of action, and other disputes that can arise between and among the parties involved in a trust.

Common Trust Disputes

A beneficiary, or prospective beneficiary, in Florida, may also file a lawsuit against one who interferes with that beneficiary’s expected lifetime gift or distribution at death. The prospective beneficiary must show that the deceased person had a specific intent to make the gift or distribution, and that the deceased person would have made the gift or distribution but for the actions of the other individual. Florida law provides that someone who successfully contests or disputes a trust, or the actions of a trustee, generally can recover the trust litigation attorney’s fees and costs of litigation from the trust estate. We typically represent those contesting a trust, defend trustees of trusts, or handle other trust disputes on an hourly fee basis. In some circumstances, we may agree to represent someone contesting a trust, or the actions of a

trustee, on a contingent fee basis. Other common trust disputes are:

  • Improper trust formation or failure to sign the trust with proper witnesses, notary, or other formal requirements
  • Lack of capacity of the settlor
  • Undue influence over the settlor
  • Distribution of assets in violation of Florida Statutes, including the spousal elective share
  • Judicial interpretation of unclear, confusing, or ambiguous language in the trust document
  • Trust reformation or modification
  • Self dealing
  • Breach of fiduciary duty by the trustee for
  • Failure to make proper or timely distributions
  • Failure to make proper or timely accountings
  • Failure to administer the trust in the manner required by the trust document
  • Failure to follow the prudent investor rule or making improper investments
  • Excessive trustee compensation