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Last Updated: October 2, 2023
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David Di Pietro
Managing Partner, Probate Attorney

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Physical copy of a Florida Revocable Living Trust with a judges gavel above it symbolizing trust litigation

Florida Trust Laws

Trusts are legal entities created to hold and manage assets for the benefit of designated individuals or entities; they are governed by state-specific rules and statutes. This article discusses Florida trust laws and their intricacies.

It’s crucial to understand that the information presented on this page serves as a directional guide and can address common queries; however, it should not be seen as an alternative to expert legal counsel. In the State of Florida, consultation with an attorney specializing in trusts is highly recommended, and often essential, to navigate the complex regulations and procedures involved.

— Table of Contents —

What is a Trust?

A trust is a legal document that allows a designated trustee to manage and oversee assets on behalf of beneficiaries. It’s designed to ensure that these assets are handled in a specified manner beyond the lifetime of the person who establishes the trust, known as the settlor or grantor.

This arrangement can be particularly beneficial for young families with minor children. Since minors can’t directly access significant sums of money, a trust can be set up to manage these funds until the children reach a certain age or maturity level. Essentially, a trust provides a structured way to pass down and manage assets, ensuring they’re used as intended, even if the original owner is no longer around

Trust Definitions

To help readers better understand the context of the article, here are some of the most common terms found within this content and/or used throughout the probate process.

To help readers better understand the context of the article, here are some of the most common terms found within this content and/or used…

Trust Administration – Trust administration involves management of assets within a trust in accordance with the documents terms. In Florida, trustees have many important duties and functions. For example, trustees are responsible for ensuring assets are handled in accordance with the wishes of the settlor. Trustees are also responsible for legal and financial aspects such as filing estate tax returns, and in some cases, paying the settlor’s debts.

Trustee – This party is responsible for managing the trust’s assets in accordance with the terms outlined by the settlor. Trustees have a fiduciary duty to act in the best interests of the beneficiaries. They manage the assets, make investments, and distribute funds or property to beneficiaries as stipulated in the trust agreement. Some trusts may have more than one trustee, known as co-trustees.

Beneficiary/Beneficiaries – An individual, or group of individuals who are named in a will/estate plan to receive a certain amount of someone’s assets after this person passes away or becomes unable to manage their assets.

Settlor (Grantor or Trustor) – This is the individual who creates the trust, transferring assets into it for management according to specified terms. The settlor outlines the rules governing the trust and designates the trustee and beneficiaries.

Protector: Some trusts include a protector, who is appointed to oversee the trustee and ensure they are fulfilling their obligations. The protector generally has the power to remove and appoint trustees.

Successor Trustee: This is a person designated to take over the management of the trust if the original trustee is unable or unwilling to continue in their role.

Decedent – A deceased individual

Revocable Trust – A type of trust that can be altered, amended, or revoked by the settlor during their lifetime.

Irrevocable Trust – Once established, this type of trust generally cannot be changed or revoked without the consent of the beneficiaries.

Living Trust – A trust created by the settlor while they are alive, as opposed to one created upon their death (a testamentary trust).

Testamentary Trust – A trust that comes into existence upon the death of the settlor, usually as a provision of their will.

Fiduciary Duty – The legal responsibility that a trustee has to manage the trust’s assets in the best interest of the beneficiaries.

Florida Trust Law Overview

Florida trust laws are primarily governed by the Florida Trust Code, which is part of the Florida Statutes, specifically Chapters 736 through 739. The Florida Trust Code was substantially modeled after the Uniform Trust Code, a nationally accepted set of laws for trusts, but it also includes provisions unique to Florida.

Here are some key aspects to understand:

Formation and Requirements – Florida law allows for the creation of various types of trusts, such as revocable, irrevocable, testamentary, and living trusts, among others. Trusts generally require a grantor (the person creating the trust), a trustee (the person managing the trust), and beneficiaries (those who benefit from the trust).

Fiduciary Duty – Trustees have a fiduciary responsibility to manage the trust’s assets in the best interests of the beneficiaries. This includes duties of loyalty, impartiality, and reasonable care.

Trust Administration – Florida trust law provides detailed guidelines on how a trust should be administered, including accounting, notifications to beneficiaries, and trustee compensation.

Beneficiary Rights: – As mentioned previously, beneficiaries have specific rights under Florida law, including the right to information, accounting, and court intervention for malfeasance by a trustee.

Creditor Claims: – Florida trust law offers certain protections for assets held within trusts from creditors, although exceptions apply. For example, irrevocable trusts often offer greater protection than revocable ones.

Trust Termination and Modification – Florida law allows for the modification or termination of trusts under specific circumstances, such as when all beneficiaries agree and the modification doesn’t contradict a material purpose of the trust, or through court intervention in certain situations.

Tax Implications – Trusts are also subject to federal and state tax laws, and Florida offers certain advantages in this regard given that it does not impose a state income tax.

Note that Florida trust law is subject to change, and legislative updates or judicial rulings can affect how trusts are created, administered, or terminated. Therefore, it’s advisable to consult legal professionals for the most current information and advice tailored to individual circumstances.

Florida Trust Requirements

Florida law has specific rules for setting up a trust. First, you must be at least 18 and mentally capable when you create the document. This is called being “of sound mind,” and it means you should understand what property you have, who your family and friends are, and what you’re trying to do with the trust.

When you’re ready to finalize your trust, you’ll need to sign it in front of two witnesses. Those witnesses also need to sign, and they have to do so while you’re all together. Just like with a will, if these signing rules aren’t followed, the trust won’t be valid.

Apart from being your own beneficiary while you’re alive, you’ll need to name who gets the remaining assets after you pass away.

You can put any assets into the trust that don’t already have a designated beneficiary. If you want to avoid probate, it’s a good idea to include these kinds of assets in your trust.

The trust remains a private document during your lifetime, unlike a will, which becomes public once you die. The revocable trust allows you to have more control over your assets even when you’re not around anymore.

Florida Beneficiary Rights

In Florida, trust beneficiaries possess specific rights when it comes to estate matters. Here’s a concise yet comprehensive overview of these rights:

Notification Rights: Beneficiaries are entitled to receive notice of Florida probate, including information about the appointed personal representative and the right to contest the will or the representative’s appointment.

Right to Understand Entitlements: Beneficiaries can approach the probate court to clarify their specific entitlements from the estate in terms of shares and amounts.

Right to Challenge the Personal Representative: Beneficiaries can petition for the removal of a personal representative due to reasons like mismanagement, fraud, or perceived inefficiencies.

Right to Challenge the Trust: Wills can be contested on grounds such as undue influence, lack of testamentary capacity, the presence of a later will, or a valid codicil.

Asset Valuation Rights: Beneficiaries are entitled to the fair market value of any estate asset, which represents the amount a buyer would reasonably pay.

Inventory and Accounting Access: Beneficiaries can request access to the estate’s preliminary inventory and detailed accounting, which includes all financial inflows and outflows.

Right to Contest Accounting: Beneficiaries aren’t obligated to accept the presented accounting. They can contest its accuracy, dispute certain payments, or challenge administrative fees.

Homestead Exemption Rights: Beneficiaries can determine if real property is safeguarded from creditors through Florida’s homestead exemption.

Right to Be Informed of Litigation: Beneficiaries have the right to be informed of any trust litigation lawsuits involving the estate, as such legal matters can impact their eventual share.

Interim Distribution Rights: In certain scenarios, beneficiaries may petition for an early distribution if they believe the estate administration is taking longer than necessary.

These rights are designed to ensure beneficiaries receive their fair share and to promote transparency and fairness in estate administration.

Common Trust Questions

Q. How do you set up a trust in Florida?

To establish a living trust, begin by selecting the appropriate trust type, comprehensively cataloging your assets, and designating a trustee. Next, draft the trust document and authenticate it in the presence of a notary public. Subsequently, populate the trust by moving assets into it. Seeking legal guidance can streamline the process of drafting and financing the trust.

Q. What is a revocable trust in Florida?

A Florida Revocable Trust is a legal instrument that enables you to shift the ownership of the majority of your assets from your individual name to the Trust. In this arrangement, you, or a person you designate, act as the Trustee. This type of trust is often called a “Living Trust” or “Revocable Living Trust” within Florida.

Q. How much does it cost to set up a trust in Florida?

Setting up a trust in Florida has associated costs that vary depending on several factors. The specific type of trust, be it a simple revocable trust or a more complex one like an irrevocable or special needs trust, plays a role in determining the cost. Moreover, the complexity of the trust factors in: a trust for a single person with limited assets will typically be less expensive than one for a large estate with diverse assets and specific provisions.

If you decide to hire an attorney to guide you through the process, their fees can further influence the overall cost, depending on their experience and regional fee standards. As of early 2022, a basic revocable trust drafted by an attorney might range from $1,000 to $3,000, with more intricate trusts costing upwards of $5,000. There could also be additional fees, such as notary charges, real estate recording fees, or costs for obtaining necessary tax identifications. Furthermore, some trusts come with recurring expenses for annual accountings, trustee services, or tax preparations. To get an accurate estimate tailored to your needs, consulting directly with a Florida attorney who specializes in estate planning or trusts is the best approach.

Trust Administration

Trust administration in Florida refers to the process of managing and distributing assets held within a trust. The person who establishes the trust is known as the settlor, while the trustee is responsible for overseeing the trust’s assets and ensuring they align with the settlor’s intentions. Beneficiaries are those who receive the benefits or assets from the trust.

In Florida, trustees bear significant legal responsibilities. They must not only manage assets in line with the settlor’s wishes but also handle associated legal and financial tasks, such as filing estate tax returns or settling the settlor’s debts. Given the intricate nature of trust administration and its legal implications, it’s crucial for trustees to work closely with experienced attorneys, especially since the administration of trusts in Florida often involves more complex laws than those governing wills.

Failure to administer a trust correctly could lead to potential legal disputes. The essence of trust administration in Florida is to ensure that assets within the trust are appropriately managed and distributed, either after the settlor’s death or as specified during their lifetime. Proper administration helps in achieving various goals, like caring for minors, supporting individuals with disabilities, and optimizing estate taxes and probate processes.

The Role of Trustees

In Florida, trustees play an essential role in managing and overseeing the assets held within a trust. Their responsibilities are outlined in the Florida Statutes and include the following key duties:

Duty to Administer: Trustees are responsible for administering the trust diligently and in good faith. This means acting in line with the trust’s terms, purposes, beneficiaries’ interests, and the relevant legal provisions.

Duty of Loyalty: A trustee must always act with loyalty, ensuring the trust’s assets and beneficiaries’ best interests are always prioritized.

Duty of Impartiality: When managing the trust, a trustee must treat all beneficiaries impartially, ensuring a balanced approach that respects each beneficiary’s respective interests.

Prudent Administration: Trustees should manage the trust with the same caution and diligence that a prudent person would, considering all relevant circumstances, including the trust’s purpose and distribution requirements.

Maintaining Reasonable Expenses: Any expenses incurred during the administration of the trust should be reasonable and appropriate, given the trust’s assets and objectives.

Protecting Trust Property: Trustees must take necessary steps to safeguard and control the trust’s assets and maintain accurate records regarding their administration.

Segregation of Assets: It’s essential for a trustee to keep their personal assets separate from the trust’s assets to avoid any conflicts of interest or breaches of fiduciary duties.

Duty to Inform and Account: Beneficiaries and other relevant parties have the right to be informed about the trust’s administration. This includes receiving notices about the trust’s status and changes, as well as annual accountings of assets. Moreover, upon request, trustees must provide beneficiaries with a full copy of the trust document.

Overall, these duties highlight the importance of transparency, diligence, and integrity in the role of a trustee in Florida. It’s essential for trustees to work closely with legal professionals to ensure they fulfill their responsibilities appropriately and in line with Florida’s legal requirements.

Trust Litigation Lawsuits

Trust litigation refers to legal disputes involving the creation, administration, or distribution of a trust. Typically, it arises when beneficiaries, trustees, or potential beneficiaries disagree over the trust’s terms, its management, or distributions from the trust. Such disputes can encompass a range of issues, from alleged mismanagement by trustees to challenges over the validity of the trust itself.

Trust litigation can be an intricate and complex process that often requires specialized legal expertise. The stakes can be high, involving not only significant financial assets but also deeply personal family dynamics. These cases may necessitate forensic accounting, interpretation of intricate legal language, or even mediation to resolve disputes amicably. Timely legal advice and intervention can be crucial in navigating the fraught landscape of trust litigation, thereby ensuring that the trust operates as intended and that beneficiaries receive their rightful distributions.

Given the complexities, it’s recommended to seek legal guidance from a trust litigation lawyer when involved in trust disputes.

Common Reasons for Trust Litigation

To initiate a challenge against a trust, the individual bringing forth the claim must have substantial and legally recognized grounds to instigate a dispute. Simply disagreeing with how assets are distributed or managed is not sufficient; there must be legitimate reasons under the law to question the trust’s validity or administration.

Examples of valid reasons to contest a trust include:

  • Formal issues with the document itself
  • Fraudulent activity
  • Lack of mental capacity by the settlor
  • Breach of Fiduciary Duty by the trustee
  • Removal of a Trustee
  • Undue influence over the settlor
  • Misconduct by the trustee or personal representative
  • Failure to provide timely accountings to beneficiaries

Florida Trust Laws Summary

In Florida, trusts are legal instruments designed to manage and distribute assets for the benefit of specific individuals or entities. A trust is established by an individual known as the settlor, and it’s managed by a trustee, who has a fiduciary duty to act in the best interest of the beneficiaries. These beneficiaries are the individuals or entities set to receive benefits or assets from the trust.

Trustees in Florida have a range of responsibilities. Primarily, they must ensure the trust is administered in good faith, aligning with the trust’s terms and the settlor’s wishes. This involves the duty to administer, a duty of loyalty to the trust’s assets and beneficiaries, and the duty of impartiality among beneficiaries. Trustees are also expected to manage the trust prudently, maintain reasonable expenses, protect trust property, and keep clear records. They should also keep trust assets separate from their personal assets. Furthermore, trustees are obligated to keep beneficiaries informed about the trust’s administration and provide them with essential documents upon request.

Legal disputes can arise concerning the creation, management, or distribution of trusts. Such trust litigation can involve allegations of mismanagement, challenges to the trust’s validity, or breaches of fiduciary duty. Given the complexities surrounding trust laws and potential disputes, it’s essential to consult with legal professionals experienced in Florida’s trust regulations to ensure proper administration and address potential conflicts.

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