Trusts are governed by Florida Statutes Chapter 736. Trusts are often established to avoid probate and take advantage of certain provisions of the tax code. Under F.S. 736.0401 a trust may be created by:
- Transfer of property to another person as trustee during the settlor’s lifetime or by will or other disposition taking effect on the settlor’s death;
- Declaration by the owner of property that the owner holds identifiable property as trustee; or
- Exercise of a power of appointment in favor of a trustee.
To be valid a trust, the creator or settlor must have capacity, indicate an intent to create the trust and have a definite beneficiary. Additionally, a trustee must have duties to perform, and they cannot be the sole beneficiary if they are the sole trustee.
Contesting the Validity of a Trust and Other Trust-Related Issues
You may contest the validity of the trust based on its construction, a mistake in the wording or execution or in its creation. For instance, a trust may be rendered invalid if it is, or any part of it is, procured by fraud, duress, mistake, or undue influence. A trust may be contested if its purposes are unlawful, contrary to public policy or impossible to achieve.
Trustee Breach of Fiduciary Duty
Trusts may also be contested if the trustee has breached their fiduciary duty. The settlor must make clear the duties of a trustee. Failure to properly exercise these duties can result in liability. Under F.S. 736.0706 a trustee may be removed if there is a:
- Serious breach of trust
- Lack of cooperation among co-trustees which “substantially impairs the administration of the trust”
- Failure to administer the trust effectively
- Substantial change of circumstances or removal requested by all beneficiaries
- Necessity for removal to protect the property or interests of beneficiaries
You may also have been deprived of your rights because the trustee is not exercising his or her duties appropriately or failing to provide you with financial benefits owed to you under a trust.
Modification and Termination of a Trust
Finally, a trust may be modified or terminated for several reasons. Under F.S. 736.0414, a trust may be terminated if the trust is valued at less than $50,000 and the “value of the trust property is insufficient to justify the cost of administration.” Florida law dictates that trusts which are uneconomical may be modified or terminated under this and other circumstances.
As with will contests, contesting the validity of a trust can be challenging. If you believe that an invalid trust was created or that a trustee is acting outside of their powers, you may be entitled to recovery.
Obtaining the Financial Benefits or Other Property Owed to You From a Trust
If you believe that you are being deprived of your rights under a trust, contact us immediately. Contact Levin Law at (305) 402-9050 or contact@levinlawpa.com today for a free, no-obligation case evaluation. We handle cases on a variety of fee arrangements, including contingent, billable, flat fee, and others. Certain statutes of limitation may apply to your claims, so it is important to contact us immediately to determine your rights.
