Some people use trusts to provide for the distribution of their assets at death or during life, rather than a will. The primary difference between the use of a trust to provide for the disposition of assets, and the use of a will for that purpose, is that the administration of the will through probate is supervised by a court. The trustee named in the trust document typically handles the administration of the trust after the death of the trustmaker (formally called the “grantor” or “settlor”).
Other than avoiding the Florida probate process, the same principles of law apply to the administration of trusts in Florida as are applicable to wills. A Florida trust that is used to provide for the distribution of assets after death must be signed with the same formalities as a will. The trustmaker is subject to the same requirements for legal capacity, competence, and being free of undue influence, as a person making a will. The language of a trust document, just as with a will, may be subject to varying interpretations. The trustee of a trust owes the beneficiaries of the trust the same fiduciary duty that a personal representative owes to the heirs and beneficiaries of a probate estate. The trustee of a trust owes the beneficiaries of that trust certain fiduciary duties of honesty, prudence, and loyalty.
The Firm represents trustees, beneficiaries, or others, who may challenge either a trust, or the actions of a trustee for any legally recognizable cause of action, as well as other disputes that can arise between the parties involved in a trust. The following trust issues and claims are often litigated by the Firm:
Actions against Trustee for Breach of Fiduciary Duty for:
- Failure to make proper and timely distributions
- Failure to make proper and timely accountings
- Failure to follow the prudent investor rule or making improper investments
- Self dealing and breach of duty of loyalty to beneficiaries
- Excessive trustee compensation
- Improper gifts from trusts and excessive distributions from a trust
- Failure to administer trust in manner required by the trust document
Actions to Remove Trustee / Surcharge Actions / Accounting of Trust:
- Judicial interpretation of unclear, confusing, or ambiguous language in the trust document
- Trust reformation or judicial modification of a trust where such amendment is required to serve the settlor’s original intention in making the trust.
Actions to Invalidate Trust / Trust Contests for:
- Undue influence over trustmaker
- Lack of capacity of the trustmaker
- Fraud or mistake
- Improper trust formation or failure to sign the trust with proper witnesses, notary, or other formal requirements
- Distribution of assets in violation of Florida Statutes, including the spousal elective share
- Representation of beneficiaries, or prospective beneficiaries, for alleged interference with that beneficiary’s expected lifetime gift or distribution at death. The prospective beneficiary must show that the deceased person had a specific intent to make the gift or distribution, and that the deceased person would have made the gift or distribution but for the actions of the other individual.