client portal
  • Blue Forbes logo
  • AVVO 10.0
  • Top 100 Lawyers badge
  • Daily Business Review Newspaper
  • Legal Elite 2012 Badge
  • Top Rated Lawyers
  • The American Lawyer, Adrian Philip Thomas

Florida Probate Blog

Category: Trust Litigation

Breach of Trust

Written by on Jan 20, 2012| Posted in: Trust Litigation

REMEDIES FOR BREACH OF TRUST A trustee of a trust has several duties and obligations to the beneficiaries in administering a trust, including but not limited to: administering the trust in good faith, in accordance with its terms and purposes (Fla.Stat. §736.0801); a duty of loyalty and to administer the trust solely in the interests of the beneficiaries (Fla.Stat. §736.0802); the trustee shall act impartially in administering the trust property giving due regard to the respective interests of multiple beneficiaries (Fla. Stat. §736.0803); in administering a trust, the trustee shall only incur expenses that are reasonable in relation to the trust property, the purposes of the trust and the skills of the trustee (Fla. Stat. §736.0805); a trustee shall keep clear, distinct, and accurate records of the administration of the trust (Fla. Stat. §736.0810); a trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and […]

read more

Florida Trust Decanting

Written by on Dec 29, 2011| Posted in: General

Florida Trust Decanting:  Phipps v. Palm Beach Trust Co., 196 So. 299 (Fla. 1940) and Florida Statute §736.04117 “Decanting” is the legal term used to describe the distribution of trust property from one trust to another trust pursuant to the trustee’s discretionary authority to make distributions to or for the benefit of one or more beneficiaries.  Common law provides authority for trust decanting, but several states – including Florida – have codified the common law.  Florida Statute §736.04117 became effective on July 1, 2007. Under common law, a trustee with absolute power to invade principal is the equivalent of a donee of a special power of appointment.  Restatement (Second) of Prop.: Donative Transfers §11.1  Absent a contrary provision in the governing document, a donee of a power of appointment may exercise such power in a manner which is less extensive than authorized by the instrument creating the power.  Thus, “the […]

read more

Trust Busting 101

Written by on Nov 7, 2011| Posted in: Trust Litigation

A potential client said, “you’re the lawyer who busts trusts.”  Busting a Florida trust was her non-lawyer way of describing trust termination/modification.  Florida law has three major trust code sections that allow a person to “bust a trust” (trust modification is the term lawyers use) in the event certain events or conditions occur. For example, 736.04113 of the Florida Trust Code provides for judicial modification of irrevocable trusts when modification is not inconsistent with settlor’s purpose. Some of the grounds that will allow judicial modification of an irrevocable trust include: (1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if: (a) The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill; (b) Because of circumstances not anticipated […]

read more

Revocation of Trust

Written by on Nov 4, 2011| Posted in: Trust Litigation

Florida Court Suggests Withdrawals from Revocable Trust Principal During Settlor’s Live Can Be Viewed as Revocation of Trust and Subject to Challenge After Death by Remainder Beneficiaries ”When things change very rapidly, we have a fiduciary responsibility to review what are the circumstances.” –Jozef Strauss Florida is home to many elderly persons with dementia who are vulnerable to financial exploitation by others.  Unfortunately, the elderly who are susceptible to undue influence are often victimized by their own family members.   All too often, the safeguards that were presumably put in place through estate planning documents are thwarted by unbridled greed.  Sometimes, even the placement of trust by the elderly in a national financial institution will not immunize the elderly from abuses. A recent Florida appellate opinion details a family scenario frequently encountered by Florida probate lawyers who practice in the field of inheritance disputes involving wills, guardianships, estates and trusts.  Siegel […]

read more

Florida Trust Litigation

Written by on Oct 12, 2011| Posted in: Trust Litigation

Florida Trust Litigation Personal Jurisdiction It is not uncommon in South Florida for individuals to be beneficiaries of Florida trusts that have a trustee located in a state other than Florida.  There is no rule that the trustee of a Florida trust must be a Florida resident, or even have a presence in Florida.  However, prior to the enactment of the Florida Trust Code there was no specific provision of the Florida Statutes which conferred personal jurisdiction over parties who were not within the geographical boundaries of Florida.  Instead jurisdiction was obtained on out of state trustees and beneficiaries under the general long-arm statutes found in chapter 48.  This lead to substantial litigation in the form of Motions to Dismiss for Lack of Personal Jurisdiction. In trust litigation (as in all lawsuits), it is necessary for the Court to have personal jurisdiction over the trustee(s) and beneficiaries.  Otherwise, the Court […]

read more

The Trustee’s Duty to Inform

Written by on Sep 15, 2011| Posted in: Trust Litigation

The Trustee’s Duty to Inform and Account The trustee is the person with legal title to trust assets; however, the trust beneficiaries are the true owners of the trust assets.  The trustee has a legal duty to inform and to account to the beneficiaries and the trust beneficiaries are entitled to inspect all documents and papers relating to the trust. The existence of a legal duty is important because it gives beneficiaries rights and remedies and exposes a trustee to liability for breach of those duties. In Florida, the trustee’s duty to inform and to account is found in the Florida Statutes (Florida Trust Code) at §736.0813, which states that the trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.  This duty includes notifying the beneficiaries of the trustee’s name and address, notifying the beneficiaries of an irrevocable trust that the trust […]

read more

Reformation of Florida Trusts

Written by on Jul 25, 2011| Posted in: Trust Litigation

Section 736.0415 of the Florida Trust Code expressly provides that unambiguous provisions of a trust may be reformed where clear and convincing evidence shows that the language of the trust does not reflect the settlor’s intent, even where the evidence regarding the settlor’s intent is contrary to the trust itself: Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor’s original intent, the court may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument. See § 736.0415, Fla. Stat. […]

read more

Trustee Removal Action

Written by on Jun 6, 2011| Posted in: Trust Litigation

Can I fire my trustee? We receive numerous inquiries from clients asking, “How can I fire my Trustee?”  In Florida, “firing a Trustee” is called a trustee removal action, through which an interested party may seek to remove a trustee of a trust, sometimes for reasons other times for no cause.  Florida Trust law contains specific statutes which address the removal of trustees. According to Florida Statute §736.0706, removal of a trustee may be sought by the settlor, a co-trustee, or any beneficiary. In addition, a court may remove a trustee on its own. Grounds for removal include a serious breach of trust, lack of cooperation among co-trustees, and unfitness, unwillingness, or persistent failure to effectively administer the trust. Any action to remove a trustee on these grounds would be considered a removal “for cause.” Florida Statute §736.0706, also permits the removal of a trustee without cause at the request […]

read more

Trustee’s Fee

Written by on Mar 24, 2011| Posted in: General

What Is a Reasonable Trustee’s Fee?  Under the Florida Trust Code, “A Trustee is entitled to compensation that is reasonable under the circumstances.”  F.S. §736.0708(1).  Unfortunately, the statutes are devoid of any reference to what amounts to “reasonable” compensation or how to determine whether fees sought by a trustee are per se reasonable. Generally, compensation of a Trustee may be established in the Trust instrument or by separate agreement with the Trustee.  In the absence of either, the circuit court has jurisdiction to review and determine a trustee’s fees.  F.S. §736.0201(4)(c), (4)(g).  Even in certain situations in which the trust does specify the trustee’s compensation, the court may adjust that compensation if the trustee’s duties are substantially different from those contemplated when the trust was created or if the compensation specified is unreasonably low or high.  F.S. §736.0708(2).  As a result, whether or not the trust instrument provides for the […]

read more

An injunction by any other name…

Written by on Nov 2, 2010| Posted in: Trust Litigation

Does the Florida Trust Code allow for freezing of trust assets without the burden of proving the traditional elements for an injunction? In short the answer is “sort of.”  Historically, if you want an injunction, the moving party must prove: She will suffer irreparable harm for which there is no adequate remedy at law unless injunctive relief is granted; She has a clear legal right to request injunctive relief; and The entry of this injunctive relief will not disserve the public interest.     “No adequate remedy at law” is the insurmountable obstacle to injunctive relief because many court rules that if you can get a money judgment (whether or not it is  collectable),then there is an adequate remedy at law therefore you are not entitled to an injunction.  Think of injunctions as the appropriate remedy for the hippie who doesn’t want the developer to cut down a 500 year old […]

read more
Page 3 of 6123456

We can make a difference.
Call now for a complimentary consultation.
Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Suntrust Center
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301