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Florida Probate Blog

Category: Trust Litigation

Can trust assets be frozen during litigation?

Written by on Aug 28, 2013| Posted in: Trust Litigation

Frequently when individuals attempt to file a claim attacking the validity of a Trust or Amendment to Trust, they do not have the proper amount of information to determine the Trust value and, more importantly, whether the assets are being depleted. This is obviously a major concern as, regardless of the outcome of the action, should the Trust assets be depleted, the remedy available to the Plaintiff is obviously significantly limited. Therefore, in order to prevent further depletion of the assets, particularly until the facts regarding the assets of the Trust are obtained, an attempt to freeze the assets within the Trust is generally an option to be considered immediately after filing the action. The question arises, under what circumstances will the Court freeze the assets within a Trust pursuant to a movant’s request to do so? A request for the Court to freeze trust assets is a request for […]

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Judicial Modification of Trusts

Written by on Jun 4, 2013| Posted in: General

Trusts are created for a variety of reasons.  Whether it is for tax and creditor protection or because the beneficiary is still a minor, there may be myriad reasons for their preparation.  Nevertheless, the initial purpose behind the execution of a trust may get lost or become impractical as time passes or the circumstances that were present at the time of its execution are no longer present or have changed making judicial modification of trusts necessary. In contemplation of such changing of circumstances, the Florida legislature enacted Fla. Stat. §736.04113 which allows a trustee or a qualified beneficiary to petition the court for an order to modify or terminate a trust in the event that settlor’s purpose behind executing the trust is no longer being satisfied.    The statute states, in relevant part, as follows: (1)    Upon application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the […]

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What are the fiduciary duties of a trustee?

Written by on Apr 1, 2013| Posted in: Trust Litigation

“The trust of the innocent is the liar’s most useful tool.”  Stephen King Our firm is contacted by many trust beneficiaries who have never received a trust accounting, and they are not aware of the fiduciary duties the Trustee of the trust has to the trust beneficiaries.  Often, the trust beneficiaries place faith and trust in the Trustee to administer the Trust in accordance with the law and what is morally correct.  They are surprised to find that the Trustee of a Trust has specific fiduciary duties to all of the beneficiaries of the trust, which include, but are not limited to the following: 1)     Under Florida law, a trustee has a duty to administer the trust in good faith, in accordance with the terms and purposes of the trust, and in the interests of the beneficiaries pursuant to Fla. Stat. § 736.0801. 2)    The Trustee owes the trust beneficiaries a […]

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Trust Accountings and Litigation

Written by on Dec 19, 2012| Posted in: Trust Litigation

In trust litigation a dispute between a beneficiary and the trustee of a trust is not uncommon.  Florida law provides that a trustee of an irrevocable trust has a duty to inform and account to a qualified beneficiary pursuant to Fla. Stat. 736.0813.  However, what happens where a qualified beneficiary has never received an accounting and then seeks redress in Court for the actions of a trustee years later? The Third District Court of Appeal recently considered such a matter in Taplin v. Taplin, 88 So. 2d 344 (Fla. 3d DCA 2012).    In Taplin, the trial court dismissed a second amended complaint with prejudice filed by a qualified beneficiary against the Co-Trustees of a trust.  The complaint had sought an accounting, breach of trust removal of trustees and surcharge.  The dismissal was based upon failure to object within the six-month limitation period provided by Florida law (at that time Florida Statute […]

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Florida Trust Litigation

Written by on Jul 6, 2012| Posted in: Trust Litigation

There are many times when trustees, beneficiaries, or others with an interest in the trust’s assets will challenge the terms of a trust, the actions of a trustee, or the validity of the entire trust instrument itself and lawsuits will be filed. Florida Trust Litigation situations can include: Trust Contests – Sometimes beneficiaries and/or people excluded from a trust will file a law suit challenging the legal validity of a Trust. They may do so in any number of ways, such as asserting mistake in execution, undue influence or lack of capacity.  The causes of action for a trust dispute or trust contest are substantially similar to those for a will contest. Trust Construction – There are occasions when a Trust contains language that is confusing or even contradictory.  Mistakes can be made, or ambiguities can arise, when Trusts are prepared. Afterwards, a lawsuit may be needed in order for […]

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Breach of Fiduciary Duty and Surcharge Action

Written by on May 22, 2012| Posted in: Trust Litigation

IMPOSING PERSONAL LIABILITY ON A TRUSTEE FOR BREACH OF FIDUCIARY DUTY WITH A SURCHARGE ACTION “We count on the space of trust that confidentiality provides.  When someone breaches that trust, we are all worse off for it.”  Hillary Clinton When a trustee is appointed, the trust instrument and Florida Statutes direct and authorize the trustee to perform their fiduciary duties as trustee. Florida Statute 736.0401 and 736.0402.  What can be done if the trustee or successor trustee breaches their fiduciary duties as trustee?  The elements of a cause of action against the trustee for breach of fiduciary duty are: 1) the existence of a duty; 2) breach of that duty; and 3) damages flowing from the breach of that duty.  Crusselle v. Mong, 59 So.3d 1178 (Fla. 5th DCA 2011). Florida Statute 736.1002 lists damages for breach of trust for which a trustee may be liable.  If there is an […]

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FL Trust Dispute Lawyer

Written by on May 14, 2012| Posted in: Trust Litigation

Florida trust disputes can take many forms.  Below are some examples of causes of action that fall under the broader category “Fl Trust Dispute:” Accounting – if a beneficiary has received inadequate or insufficient information from a trustee, the beneficiary may need to formally demand an accounting to compel compliance. Removal – if a trustee has acted inappropriately and needs to be removed from the position of trustee, a beneficiary may seek to have the court remove the trustee. Breach of Fiduciary Duty – if a trustee has engaged in conduct that violates his duties to the beneficiaries, a beneficiary may sue the trustee for breach, which is a cause of action for money damages. Trust Modification – if a beneficiary believes there is a mistake in the trust or that the person who made the trust did not adequately anticipate the beneficiary’s current needs, he may seek assistance – […]

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Florida Constructive Trust

Written by on Apr 13, 2012| Posted in: Trust Litigation

A Constructive Trust is an equitable remedy and is created when a court, through application of a legal fiction, deems property formerly held by one who wrongfully obtained the property, to be held in Trust for the one who the property justly belongs to be the beneficiary of the Trust.

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Breach of Fiduciary Duty

Written by on Mar 25, 2012| Posted in: Trust Litigation

BREACH OF TRUSTEE’S OR SUCCESSOR TRUSTEE’S FIDUCIARY DUTY “The prudent heir takes careful inventory of his legacies and gives a faithful accounting to those whom he owes an obligation of trust.”  John F. Kennedy When a Revocable Trust is executed, the Trustee is usually the person who executed the trust.  The settlor of the trust could also appoint another person or financial institution as the Trustee of his or her revocable trust.   When the Trustee dies or is no longer able to serve, a successor trustee is named in the trust instrument, which directs and authorizes the successor trustee to perform their fiduciary duties as successor trustee. Florida Statute 736.0401 and 736.0402.  What happens if the trustee or the successor trustee does not perform their fiduciary duties as trustee?  The beneficiaries and residual beneficiaries of the trust should take careful inventory of their legacy.  They are entitled to a yearly […]

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How to Remove a Trustee in Florida

Written by on Feb 29, 2012| Posted in: Trust Litigation

Florida law allows for a trustee in Florida to be removed for certain reasons.  The grounds to remove a trustee in Florida include: (a) The trustee has committed a serious breach of trust; (b) The lack of cooperation among cotrustees substantially impairs the administration of the trust; (c) Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or (d) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available. A trustee has the duty to administer the trust diligently for the benefit of the beneficiaries. A trustee […]

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