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Florida Probate Blog

Category: Trust Litigation

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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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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