Trust Litigation in Florida
Fla. Stat. §§ 736.0207, 736.1001, 736.1008
Florida trust litigation takes two main forms: a contest claiming the trust itself is invalid, and a suit claiming the trustee breached a duty. A court can void a trust procured by undue influence or fraud, order an accounting, award damages, or remove the trustee. Some claims are barred 6 months after an adequate disclosure (Fla. Stat. § 736.1008).
What it is
Most trust disputes are filed as a civil complaint governed by the Florida Rules of Civil Procedure, not as a probate petition (Fla. Stat. § 736.0201(1)). The court can determine the validity of a trust, appoint or remove a trustee, review trustee fees, settle accounts, construe the trust instrument, and decide other questions between trustees and beneficiaries (§ 736.0201(4)).
A trust contest says the trust, or an amendment or restatement, should not be enforced. If its creation, amendment or restatement was procured by fraud, duress, mistake or undue influence, the trust or the part so procured is void (Fla. Stat. § 736.0406). The capacity needed to create, amend or revoke a revocable trust is the same as the capacity needed to make a will (§ 736.0601). The contestant has the burden of establishing the grounds (§ 736.0207(1)).
A breach-of-trust claim accepts the trust as valid and says the trustee violated a duty owed to a beneficiary (Fla. Stat. § 736.1001(1)). Typical claims involve self-dealing, failing to inform or account, poor investment, favoring one beneficiary, or improper distributions.
A clause in a trust that penalizes a beneficiary for contesting it or bringing other proceedings is unenforceable for trusts created on or after October 1, 1993; a revocable trust is treated as created when the right of revocation ends (Fla. Stat. § 736.1108). For how a trustee should run the trust day to day, see trustee responsibilities in Florida.
Duties a Florida Trustee Can Breach
A violation of any duty the trustee owes a beneficiary is a breach of trust (Fla. Stat. § 736.1001(1)). The duties most often litigated are:
- Good faith administration: administer the trust in good faith, according to its terms and purposes and the interests of the beneficiaries (Fla. Stat. § 736.0801).
- Loyalty: administer the trust solely in the interests of the beneficiaries (Fla. Stat. § 736.0802(1)). A transaction for the trustee's own account, or one affected by a conflict between fiduciary and personal interests, is voidable by an affected beneficiary unless an exception in § 736.0802(2) applies.
- Presumed conflicts: a transaction with the trustee's spouse, descendants, siblings, parents or their spouses, or with the trustee's agents, attorney or a business in which the trustee has an interest, is presumed to be affected by a conflict (Fla. Stat. § 736.0802(3)).
- Impartiality: when there are two or more beneficiaries, act impartially, giving due regard to their respective interests (Fla. Stat. § 736.0803).
- Prudent administration: administer the trust as a prudent person would, exercising reasonable care, skill and caution (Fla. Stat. § 736.0804).
- Duty to inform and account: keep qualified beneficiaries reasonably informed, give the required notices within 60 days, provide a complete copy of the trust on reasonable request, and provide trust accountings at least annually (Fla. Stat. § 736.0813(1)).
While a trust is revocable, the trustee's duty to inform and account runs only to the settlor (Fla. Stat. § 736.0813(4)). Most trust disputes therefore begin after the settlor dies.
Trust Contest vs. Breach-of-Trust Claim
| Aspect | Trust Litigation in Florida | Breach-of-trust claim |
|---|---|---|
| What it challenges | Whether the trust, amendment or restatement is valid | How the trustee has administered a valid trust |
| Typical grounds | Lack of capacity (§ 736.0601); fraud, duress, mistake or undue influence (§ 736.0406) | Violation of a duty owed to a beneficiary (§ 736.1001(1)) |
| Burden of proof | On the contestant (§ 736.0207(1)) | Depends on the claim; conflict-of-interest transactions are presumed affected in listed cases (§ 736.0802(3)) |
| Earliest filing | Not until a revocable trust becomes irrevocable by its terms or the settlor's death (§ 736.0207(2)) | When the breach occurs or is threatened (§ 736.1001(2)) |
| Deadline | Earlier of the chapter 95 period or 6 months after the trustee sends the trust and the required notice (§ 736.0604) | Chapter 95 periods, or 6 months after an adequate disclosure and limitation notice (§ 736.1008) |
| Main remedies | The trust or affected part is void (§ 736.0406) | Damages, accounting, surcharge, removal and other relief (§§ 736.1001, 736.1002) |
Deadlines and the Course of a Trust Lawsuit
Trust deadlines depend on what the beneficiary received from the trustee. A contest of a trust that was revocable at the settlor's death is barred if not commenced within the earlier of the time provided in chapter 95, or 6 months after the trustee sent the person a copy of the trust instrument and a notice of the trust's existence, the trustee's name and address, and the time allowed for commencing a proceeding (Fla. Stat. § 736.0604).
For breach-of-trust claims, a beneficiary is barred on a matter adequately disclosed in a trust accounting or other written report unless a proceeding is commenced within 6 months after receiving the disclosure document or a limitation notice that applies to it, whichever is later (Fla. Stat. § 736.1008(2)). Matters not adequately disclosed are governed by chapter 95, with accrual rules set out in § 736.1008(1) and (3).
- Request the trust: a qualified beneficiary may request a complete copy of the trust instrument (Fla. Stat. § 736.0813(1)(c)) and relevant information about the trust's assets, liabilities and administration (§ 736.0813(1)(e)).
- Review accountings: compare each accounting against the content required by Fla. Stat. § 736.08135, and note the date it arrived, because adequate disclosure can start the 6-month period.
- File the complaint: most trust proceedings are governed by the Florida Rules of Civil Procedure (Fla. Stat. § 736.0201(1)).
- Interim protection: while a removal request is pending, the court may order relief under § 736.1001(2) to protect the trust property or the beneficiaries (Fla. Stat. § 736.0706(3)), including suspending the trustee or appointing a special fiduciary (§ 736.1001(2)(e)–(f)).
- Trustee's defense costs: a trustee who pays defense fees from the trust for a pleaded breach-of-trust claim must first serve a notice of intent on affected qualified beneficiaries, who may ask the court to prohibit the payment or compel its return (Fla. Stat. § 736.0802(10)).
- Outer limits: regardless of other periods, claims against a trustee are barred by the 10-, 20- and 40-year repose periods in Fla. Stat. § 736.1008(6), extended by 30 years where a beneficiary shows by clear and convincing evidence that the trustee actively concealed the facts.
Liability and why counsel matters
A trustee who commits a breach of trust is liable for the greater of the amount needed to restore the trust property and distributions to what they would have been without the breach, including lost income and appreciation, or the profit the trustee made from the breach (Fla. Stat. § 736.1002(1)). The court may also compel the trustee to perform, enjoin a breach, order an accounting, reduce or deny compensation, void an act, impose a lien or constructive trust, or remove the trustee (§ 736.1001(2)). Removal is available for a serious breach of trust, lack of cooperation among cotrustees, the trustee's unfitness or persistent failure to administer effectively, or certain changes of circumstance (§ 736.0706(2)). In breach-of-fiduciary-duty actions the court shall award taxable costs, including attorney fees, and may charge them against a party's interest in the trust (§ 736.1004). Both partners are Florida Supreme Court Certified Circuit Court Mediators, and trust mediation is often worth trying before trial. For other estate and trust disputes, see probate litigation.
Frequently Asked Questions
How do I sue a trustee in Florida?
A beneficiary usually files a civil complaint in circuit court under the Florida Rules of Civil Procedure (Fla. Stat. § 736.0201(1)), alleging that the trustee violated a duty owed to the beneficiary (§ 736.1001(1)). The complaint can ask the court to compel an accounting, award damages, reduce the trustee's compensation, appoint a special fiduciary or remove the trustee (§ 736.1001(2)). Check the 6-month limit in § 736.1008 first.
What is breach of fiduciary duty by a trustee in Florida?
It is any violation of a duty the trustee owes a beneficiary (Fla. Stat. § 736.1001(1)). The core duties are to administer in good faith (§ 736.0801), solely in the beneficiaries' interests (§ 736.0802), impartially among beneficiaries (§ 736.0803), prudently (§ 736.0804), and with the required notices, information and accountings (§ 736.0813). A trustee who breaches a duty can be ordered to pay damages, account, or step down (§§ 736.1001, 736.1002).
Can I contest a trust in Florida?
Yes, an interested party can claim that a trust, or an amendment or restatement, is void because it was procured by fraud, duress, mistake or undue influence (Fla. Stat. § 736.0406), or because the settlor lacked the capacity needed to make a will (§ 736.0601). The contestant has the burden of proof (§ 736.0207(1)). A revocable trust cannot be contested until it becomes irrevocable (§ 736.0207(2)).
How long do I have to contest a trust in Florida?
For a trust that was revocable at the settlor's death, the contest is barred unless commenced within the earlier of the chapter 95 limitation period or 6 months after the trustee sent you a copy of the trust instrument and a notice stating the trust's existence, the trustee's name and address, and the time allowed for bringing a proceeding (Fla. Stat. § 736.0604).
What is the 6-month limit on claims against a trustee?
If a trust accounting or other written report adequately discloses a matter, a beneficiary must commence a proceeding within 6 months after receiving that document or a limitation notice that applies to it, whichever is later (Fla. Stat. § 736.1008(2)). A disclosure is adequate if it gives enough information that the beneficiary knows of a claim or reasonably should have inquired (§ 736.1008(4)(c)).
Can a trustee use trust money to defend a lawsuit?
Generally yes, but with a check. When a breach-of-trust claim is made in a filed pleading, the trustee must serve a notice of intent on affected qualified beneficiaries before paying defense fees from the trust (Fla. Stat. § 736.0802(10)(b)). A beneficiary may move to prohibit the payment or compel repayment; the court must find a reasonable basis to conclude there has been a breach of trust to grant the motion (§ 736.0802(10)(e)).
Who can ask the court to remove a trustee in Florida?
The settlor, a cotrustee or a beneficiary may ask the court to remove a trustee, and the court may act on its own (Fla. Stat. § 736.0706(1)). Grounds include a serious breach of trust, lack of cooperation among cotrustees, and unfitness, unwillingness or persistent failure to administer the trust effectively (§ 736.0706(2)). The court can protect the trust while the request is pending (§ 736.0706(3)).
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Questions about a trustee or a trust document?
We represent beneficiaries and trustees in Florida trust disputes. Call (407) 843-0430 or schedule a consultation with our trust administration attorneys to review the trust, the accountings and the deadlines.
Or text PROBATE to (407) 906-9507 for a faster response.
Yergey & Yergey, P.A. | 910 N. Fern Creek Avenue, Orlando, FL 32803
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