Office of the Trustee Under Florida’s Trust Code
PART VII
OFFICE OF TRUSTEE
736.0701 Accepting or declining trusteeship.
736.0702 Trustee’s bond.
736.0703 Cotrustees.
736.0704 Vacancy in trusteeship; appointment of successor.
736.0705 Resignation of trustee.
736.0706 Removal of trustee.
736.0707 Delivery of property by former trustee.
736.0708 Compensation of trustee.
736.0709 Reimbursement of expenses.
736.0701 Accepting or declining trusteeship.—
(1) Except as otherwise provided in subsection (3), a person designated as trustee accepts the trusteeship:
(a) By substantially complying with a method of acceptance provided in the terms of the trust; or
(b) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.
(2) A person designated as trustee who has not accepted the trusteeship may decline the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have declined the trusteeship.
(3) A person designated as trustee may, without accepting the trusteeship:
(a) Act to preserve the trust property if, within a reasonable time after acting, the person sends to a qualified beneficiary a written statement declining the trusteeship.
(b) Inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose.
736.0702 Trustee’s bond.—
(1) A trustee shall give bond to secure performance of the trustee’s duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.
(2) The court may specify the amount of a bond, the trustee’s liabilities under the bond, and whether sureties are necessary. The court may modify or terminate a bond at any time.
736.0703 Cotrustees.—
(1) Cotrustees who are unable to reach a unanimous decision may act by majority decision.
(2) If a vacancy occurs in a cotrusteeship, the remaining cotrustees or a majority of the remaining cotrustees may act for the trust.
(3) A cotrustee must participate in the performance of a trustee’s function unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification under other provision of law, or other temporary incapacity or the cotrustee has properly delegated the performance of the function to another cotrustee.
(4) If a cotrustee is unavailable to perform duties because of absence, illness, disqualification under other law, or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust.
(5) A cotrustee may not delegate to another cotrustee the performance of a function the settlor reasonably expected the cotrustees to perform jointly, except that a cotrustee may delegate investment functions to a cotrustee pursuant to and in compliance with s. 518.112. A cotrustee may revoke a delegation previously made.
(6) Except as otherwise provided in subsection (7), a cotrustee who does not join in an action of another cotrustee is not liable for the action.
(7) Except as otherwise provided in subsection (9), each cotrustee shall exercise reasonable care to:
(a) Prevent a cotrustee from committing a breach of trust.
(b) Compel a cotrustee to redress a breach of trust.
(8) A dissenting cotrustee who joins in an action at the direction of the majority of the cotrustees and who notifies any cotrustee of the dissent at or before the time of the action is not liable for the action.
(9) If the terms of a trust instrument provide for the appointment of more than one trustee but confer upon one or more of the trustees, to the exclusion of the others, the power to direct or prevent specified actions of the trustees, the excluded trustees shall act in accordance with the exercise of the power. Except in cases of willful misconduct on the part of the trustee with the authority to direct or prevent actions of the trustees of which the excluded trustee has actual knowledge, an excluded trustee is not liable, individually or as a fiduciary, for any consequence that results from compliance with the exercise of the power, regardless of the information available to the excluded trustees. The excluded trustees are relieved of any obligation to review, inquire, investigate, or make recommendations or evaluations with respect to the exercise of the power. The trustee or trustees having the power to direct or prevent actions of the trustees shall be liable to the beneficiaries with respect to the exercise of the power as if the excluded trustees were not in office and shall have the exclusive obligation to account to and to defend any action brought by the beneficiaries with respect to the exercise of the power.
736.0704 Vacancy in trusteeship; appointment of successor.—
(1) A vacancy in a trusteeship occurs if:
(a) A person designated as trustee declines the trusteeship;
(b) A person designated as trustee cannot be identified or does not exist;
(c) A trustee resigns;
(d) A trustee is disqualified or removed;
(e) A trustee dies; or
(f) A trustee is adjudicated to be incapacitated.
(2) If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee.
(3) A vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority:
(a) By a person named or designated pursuant to the terms of the trust to act as successor trustee.
(b) By a person appointed by unanimous agreement of the qualified beneficiaries.
(c) By a person appointed by the court.
(4) A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority:
(a) By a person named or designated pursuant to the terms of the trust to act as successor trustee.
(b) By a person selected by unanimous agreement of the charitable organizations expressly designated to receive distributions under the terms of the trust.
(c) By a person appointed by the court.
(5) The court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust, whether or not a vacancy in a trusteeship exists or is required to be filled.
736.0705 Resignation of trustee.—
(1) A trustee may resign:
(a) Upon at least 30 days’ notice to the qualified beneficiaries, the settlor, if living, and all cotrustees; or
(b) With the approval of the court.
(2) In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.
(3) Any liability of a resigning trustee or of any sureties on the trustee’s bond for acts or omissions of the trustee is not discharged or affected by the trustee’s resignation.
736.0706 Removal of trustee.—
(1) The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on the court’s own initiative.
(2) The court may remove a trustee if:
(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.
(3) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under s. 736.1001(2) as may be necessary to protect the trust property or the interests of the beneficiaries.
736.0707 Delivery of property by former trustee.—
(1) Unless a cotrustee remains in office or the court otherwise orders and until the trust property is delivered to a successor trustee or other person entitled to the property, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.
(2) A trustee who has resigned or been removed shall within a reasonable time deliver the trust property within the trustee’s possession to the cotrustee, successor trustee, or other person entitled to the property, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes. The provisions of this subsection are in addition to and are not in derogation of the rights of a removed or resigning trustee under the common law.
736.0708 Compensation of trustee.—
(1) If the terms of a trust do not specify the trustee’s compensation, a trustee is entitled to compensation that is reasonable under the circumstances.
(2) If the terms of a trust specify the trustee’s compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if:
(a) The duties of the trustee are substantially different from those contemplated when the trust was created; or
(b) The compensation specified by the terms of the trust would be unreasonably low or high.
(3) If the trustee has rendered other services in connection with the administration of the trust, the trustee shall also be allowed reasonable compensation for the other services rendered in addition to reasonable compensation as trustee.
736.0709 Reimbursement of expenses.—
(1) A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for reasonable expenses that were properly incurred in the administration of the trust.
(2) An advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.
Author:
Barry E. Haimo, Esq.
Haimo Law
Strategic Planning With Purpose
Email: barry@haimolaw.com
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