Florida Estate Planning Lawyer Blog
As a Jacksonville Living Trust Lawyer, I have noticed many changes that effect the administration of Trusts, even those which were already in existence when on July 1, 2007 when the Florida’s New Trust Code became effective. If you are an estate planning attorney in another state and have clients who have trusts in Florida, it is most likely that their trusts must be managed differently than their trust document would imply.
1) A trustee has a duty to act in good faith in the interest of the beneficiaries and in accordance with the terms of the trust, imposed in part by sections 736.0801 and 736.0802.
2) There is a new 6 month statute of limitation sunder section 736.1008 with regard to any item set forth in a trust disclosure statement which contains a limitation notice containing the six-month period of time under 736.0604 within which to contest the validity of the terms of the trust.
3) The court has the power to take action and exercise jurisdiction as necessary ” in the interest of justice.”
4) The court has the power to modify or terminate a trust under sections 736.0410-04115, 0413, 0415, and 0416. Judicial modification in the best interest of the beneficiaries under section 736.0415(3) is not mandatory as to (i) any trust created prior to January 1, 2001 and (ii) any trust created after December 31m 2000 if it is subject to the Traditional RAP (90 years vs the expanded 365 Year RAP that Florida permits) or the trust expressly prohibits such judicial modification.
5) Nonjudicial modification with unanimous agreement of the trustee and all qualified beneficiaries under 736.0412 is not mandatory as to (i) any trust created prior to January 1, 2001, (ii) any charitable trust until the termination of all charitable interests, and (iii) any trust created after December 31, 2000 if it is subject to the Traditional RAP unless the trust expressly authorizes such nonjudicial modification.
6) New Spendthrift protections which affect the rights of creditors and assignees to reach a trust under part V of the Trust Code.
7) Trustee’s duty under section 736.0503 to pay expenses and obligations of a settlor of a revocable trust upon death.
8) Trustee’s duty under section 736.05055 to file a notice of trust with regard to a revocable trust upon the death of a settlor.
9) Trustee’s duties under section 736.0813 to provide to qualified beneficiaries (or their designated representatives under 736.0306) (i) notification of the existence of an irrevocable trust, the identity of the trustee and their rights to trust accountings, (ii) a copy of the trust agreement and to account, and (iii) respond to requests for relevant information about the assets, liabilities, and particulars relating to the trust administration
10) Rights of third parties other than the trustee or beneficiary under sections 736.1013-736.1017