What Is a Special Fiduciary in a Florida Trust?
By Adrian P. Thomas, LL.M., J.D. | Shareholder and Founding Partner, Adrian Philip Thomas, P.A.
Quick answer. A special fiduciary in a Florida trust is a person a court appoints to act in a limited capacity when the trustee cannot. Authority comes from Section 736.0704(5) for necessary administration, Section 736.0802 for loyalty conflicts, Section 736.1001(1)(e) as a breach remedy, and Section 736.0706(3) during a pending removal action.
Key takeaways
- Section 736.0704(5) allows appointment whenever necessary for administration, whether or not a vacancy exists.
- Section 736.0802 allows appointment to handle a transaction that would otherwise breach the trustee's duty of loyalty.
- Sections 736.1001(1)(e) and 736.0706(3) allow appointment as a breach remedy and during a pending removal action.
When can a court appoint a special fiduciary?
Under Section 736.0704(5), a court may appoint an additional trustee or special fiduciary whenever it considers the appointment necessary for the administration of the trust, whether or not a vacancy exists. The standard is necessity for administration, a flexible measure that lets the court respond to the circumstances.
How does a special fiduciary solve a loyalty conflict?
Under Section 736.0802, a court may appoint a special fiduciary to act in relation to any transaction that could result in the trustee violating its duty of loyalty. A trustee facing a conflicted transaction need not abandon it or breach the duty. The court installs a special fiduciary to handle the matter through hands untainted by the conflict.
What defines the special fiduciary's role?
Limitation. The appointment is typically limited in scope, in time, or in both. A special fiduciary may be authorized to perform only a specific act or to last only until a successor is selected. This limited character distinguishes the special fiduciary from a successor trustee, who assumes the full role permanently.
Frequently asked questions
Does a vacancy have to exist to appoint a special fiduciary?
No. Section 736.0704(5) permits appointment whether or not a vacancy exists.
Can a special fiduciary protect a trust during a removal case?
Yes, under Section 736.0706(3), during a pending action to remove a trustee.
Is a special fiduciary the same as a successor trustee?
No. A special fiduciary serves a limited role, while a successor trustee assumes the full role permanently.
About the author
Attorney Adrian Philip Thomas is a shareholder and founding partner of Adrian Philip Thomas, P.A., a boutique attorney law firm located in Fort Lauderdale, Florida. He has practiced law for the past 30 years, maintaining an office in Fort Lauderdale, Broward County, Florida. Mr. Thomas is "AV" rated by Martindale-Hubbell and has been selected on multiple occasions as one of Florida's Legal Elite by Florida Trend Magazine and selected as a Super Lawyer. Mr. Thomas concentrates his practice in estate and trust litigation, both prosecuting and defending, which includes matters involving estates, trusts, and probate. He represents clients with disputes throughout the State of Florida. Attorney Adrian Philip Thomas has a Master of Laws from the University of Miami, a Juris Doctor from Nova Southeastern University, and a Bachelor of Science from the University of Florida. Attorney Adrian Philip Thomas has lectured at continuing legal education seminars on various probate topics.
This article is general legal information about Florida law, not legal advice, and does not create an attorney-client relationship. Consult a Florida-licensed attorney about your specific situation.
