Florida Trust Litigation Attorneys
Handling Estate Disputes for Clients Since 2002
Trusts are used by many individuals who are seeking to avoid the courtroom during the probate process. Trusts can provide for the distribution of assets when a person dies without the need for a will. By using trusts, you not only avoid probate court but can also save your beneficiaries time, money, and aggravation. Trusts, however, are not guaranteed to always avoid courtroom litigation. There are many times when trustees, beneficiaries, or others with an interest in the trust’s assets will challenge a trust, the actions of a trustee, or the validity of the trust itself. When this occurs, lawsuits must be filed.
Contesting a Trust in Florida
Sometimes a beneficiary who receives less than expected or who was cut out completely from the trust can file a lawsuit challenging the legal validity of the trust on any number of grounds. This type of trust litigation can include:
- Undue Influence: An undue influence claim challenges whether the person making the trust did so freely and without being coerced by a person who was in a position of confidence and control.
- Lack of Capacity: This type of claim is asserted based upon the belief that at the time the trust was executed the person making the Trust did not have the requisite mental ability to understand the amount and nature of their property, the family members and loved ones who would ordinarily receive such property, and how the will disposes of such property.
- Mistake in Execution: An express trust must be executed in conformance with Florida Statute §736.0403. If this statute is not followed, the trust may not be valid.
Challenging the Actions of a Trustee
Many trust litigation lawsuits in Florida are focused upon the actions or inaction of the trustee, which can include the following:
- Breach of Fiduciary Duty: Failure to properly administer a trust, either by overt act or by omission, can be actionable. Sometimes the remedy sought is removal of the fiduciary, but when funds have been wasted or mismanaged or excessive fees have been taken, the remedy is a surcharge action.
- Surcharge Action: The purpose of a surcharge against a fiduciary is to restore the losses sustained by the fiduciary’s breach of duty.
- Accounting: Beneficiaries have the right to an accounting. If one has not been provided, then a beneficiary can seek the court’s assistance to compel the fiduciary to account for the trust assets. If an accounting has been provided and is objectionable for any reason, then the beneficiary can object to the accounting and seek judicial intervention.
Alternatives to a Trust Contest
There are several options under Florida’s Trust Code for trust beneficiaries or interested persons who are seeking justice in connection with a trust other than seeking to have the trust declared invalid. These options include:
- Nonjudicial Settlement Agreements: Under Florida Trust Code §736.0111, interested persons can enter into a binding nonjudicial settlement agreement concerning virtually any trust matter. Many lawsuits can be avoided through the parties working out a nonjudicial settlement agreement (outside of court). The advantage of this type of resolution is that it avoids the often uncertain outcome that comes with trying a case through a verdict and gives the parties some control over the ultimate result.
- Trust Modification and Termination: Oftentimes, a trust dispute can be resolved through simple modification, termination, or reformation of the trust. The Florida Trust Code permits trust modifications in a manner consistent with the settlor’s purposes for the trust. Section 736.04115 permits judicial modifications in the best interest of the beneficiaries and §736.0412 permits nonjudicial modifications of trusts.
- Uneconomic Trust Can Be Terminated: Section 736.0414 of the Florida Trust Code provides a mechanism for a trustee or a court to modify or terminate an uneconomic trust. A trustee of a trust with property worth less than $50,000 may terminate the trust on its own initiative if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration. In addition, upon application of a trustee or any qualified beneficiary, a court can modify or terminate a trust, or remove or appoint a different trustee, if the court determines that the value of the trust property is insufficient to justify the cost of administration.
- Trust Reformation: Under Section 736.0415, an interested person may ask the court to reform the terms of a trust to conform to the settlor’s intentions 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. Under this section, reformation is available for both mistakes of law and of fact, whether or not the terms of the trust are ambiguous.
- Trustee Removal: A trustee can resign with court approval or, in lieu thereof, by giving at least 30s days' notice to the settlor (if living), the co-trustees (if any), and all qualified beneficiaries. In either case, a trustee’s resignation does not discharge any liability of the resigning trustee or any sureties on the trustee’s bond.
Speak to an Experienced Trust Litigator in Florida
If you have questions or concerns about a trust litigation matter, then please reach out to Adrian Philip Thomas, P.A. to find out how we can assist you. Our caring and aggressive legal advocates have been serving clients since 2002, and we are prepared to use our extensive resources to fight for the justice you deserve.
Dan [McGowan], Again, great job last week.- R.E.
We are so impressed with your firm.- I.M.
Adrian and Dan, Thank you both so very much!!!- M.L.
I appreciate you more than you realize.- R.C.
So very thankful...- D.C.