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Trustee Duties and Responsibilities in the Administration of a Living Trust

A. General Overview:

1. All trustees must follow the terms of the trust instrument unless the provision is illegal or impossible to perform, or if circumstances warrant a court-ordered deviation.

2. In order to perform the responsibilities of trust administration, all trustees have not only the powers specifically set forth in the trust instrument, but also those provided in the Florida probate code
and the Florida trust code which are automatically granted even though not stated in the trust document itself.

3. If both the specific powers stated in the trust instrument as well as those found in the Florida probate code and Florida trust code are not sufficient to enable the trustee to complete the instructions of the living trust agreement, the trustee can petition the Florida probate court for additional trustee powers.

4. Additionally, there may be an omnibus clause in the trust document or other implied powers by Florida law, which allow the trustee to do anything necessary to carry out the objectives and purposes of the living trust as expressed in the trust document. (Note: Using any powers that go beyond those expressly stated in the trust document or provided by Florida statute can be risky to the trustee and should be exercised very cautiously.)

If you need an experienced Florida probate lawyer to assist you with the administration of a living trust, please call us at 866-510-9099.

B. Terms of the Trust:

1. The express terms of the living trust instrument are controlling of the trustee’s actions.

2. Any action taken by the trustee which goes contrary to the express language of the living trust document may expose the trustee to personal liability.

3. If the language of the living trust instrument is ambiguous or unclear, the trustee can refer to verbal or written instructions known to the trustee that are outside of the trust for clarification. However, those extrinsic sources cannot be used to override or take any action that is contradictory to the language of the trust instrument.

4. Rather than taking any action that is contrary to the trust instrument (even if it appears to be inferred by extrinsic written or oral instructions from the trustmaker), the trustee should consider petitioning the Florida probate court for direction and guidance. Failure to do so could make the trustee personally liable to trust beneficiaries, creditors, or third parties who were negatively effected by the trustee’s conduct.

5. If any written direction to the trustee outside the living trust document would have the effect of modifying the language of the trust itself, the trustee would put himself at peril if he followed those instructions unless they meet the formal, legal requirements for trust modification and approval is sought from the Florida probate court, or all trust beneficiaries.

C. Duty of Skill and Care :

1. All trustees have the duties and responsibilities of the trustee position regardless of whether or not they are compensated for their services.

2. In fulfilling his duties, the trustee must do so “with reasonable care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity would use in the conduct of an enterprise of like character and with like aims to accomplish the purpose of the trust as determined from the trust instrument”. This applies to trust investments, trust administration and the distribution of trust assets to trust beneficiaries.

3. If the trustee is considered to be an “expert trustee” with special knowledge, skills and experience dealing with trusts, his duty of care and diligence will be greater.

4. At least once every year (more often if required by the living trust agreement), the trustee is required to give a full trust accounting of the value of all trust assets, trust income received, distributions of trust assets to trust beneficiaries made, trust administration expenses paid, etc., etc. to all trust beneficiaries to whom trust income or or trust principal that year was distributable. Any language in the living trust document contrary to this requirement is void under Florida trust law. However, a trust beneficiary may voluntarily waive the right to receive that information so long as the waiver of accounting is in writing signed by the trust beneficiary.

5. The trustee also must keep trust beneficiaries reasonably informed of trust activity and trust administration.

6. When a living trust that was revocable becomes irrevocable (usually on the death of a trustmaker), the trustee must provide a complete copy of the irrevocable portions of the trust agreement to any trust beneficiary of a deceased trustmaker who requests a copy.

  7. The above duty to provide a copy of the trust agreement includes the responsibility to provide a report about the trust assets, trust liabilities and trust disbursements that are relevant to the trust beneficiary’s interest. (This does not apply if the living trust is revocable.)

8. The privileges of attorney/client communications and attorney work product remain protected and do not need to be disclosed.

9. If access to trust records is given to a trust beneficiary or potential trust beneficiary, rather than providing copies thereof, the trustee should be present during that review.

10. Absent contrary instructions in the trust instrument, the trustee has a duty not to delegate to third persons the performance of acts that the trustee can reasonably be required to perform personally. (This does not mean the trustee is prohibited from engaging the services of trust administration attorneys, financial advisors, accountants, clerical assistants, etc.).

If you need the assistance of a probate lawyer in Florida to assist you with the administration of a trust estate in Florida, please call us toll free at 1-866-510-9099.

 D. Notification Requirements:

1. Notification to all "qualified" trust beneficiaries of an irrevocable trust or the irrevocable portion of a living trust must be given in the following circumstances:

a. When a previously revocable trust becomes irrevocable in full or in part.

b. When there is a change of trustees of an irrevocable trust.

2. The persons to receive notification are:

a. Each trust beneficiary of the irrevocable trust or irrevocable portion.

b. Each heir of the trustmaker if the event creating the irrevocability is the death of the trustmaker.

c. The attorney general if the trust is a charitable trust subject to the supervision by the attorney general.

d. Identification of said persons is tempered by the ability of the trustee to identify or locate such persons through reasonable diligence.

3. Notification to the trust beneficiary is to be made by mail to the last known address or by personal delivery within 60-days following the occurrence of the event requiring service of the notification, or 60-days following the trustee becoming aware of the existence of the person entitled to notification.

4. The notification must contain the following:

a. The identity of the trustmaker and the date of the trust.

b. The name, mailing address and phone number of each trustee of the trust.

c. The address of the physical location serving as the place of administration of the trust.

d. Any additional information that may be required by the terms of the trust itself.

e. The right of the recipient upon reasonable request to receive a true and complete copy of the terms of the trust as applicable to that person.

f. A warning, set out in a separate paragraph in boldfaced type, that states, “you may not bring an action to contest the trust more than six months from the date this notification by the trustee is served upon you or from the day on which a copy of the terms of the trust is mailed or personally delivered to you in response to your request during the six month period, whichever is later.” (This warning is not required if notification is served only because of a change of trustee.)

5. Failure of a trustee to provide the required notice will subject the trustee to all damages, including attorney fees and costs caused by the failure to give the notification unless the trustee has made a good faith effort to comply with that responsibility.

If you need the assistance of an experienced Florida probate attorney to help you with administering a revocable trust in Florida, please call us toll free at 1-866-510-9099.

E. Duty of Confidentiality:

1. Every trustee has a duty to keep the affairs of the trust administration confidential (this applies to the terms of the trust, the identity and interest of the trust beneficiaries and the nature of the trust assets.)

2. Special rules may apply if the trustee is a corporate fiduciary administering a private trust.

3. In some instances, the duty of confidentiality can be overridden. These include:

a. Litigation and rules of discovery or presentation of evidence that may be applicable.

b. Possibly government regulations such as the filing of income tax returns or property tax issues.

c. When the information that is being disclosed is already of public record.

d. The previously described rights of certain trust beneficiaries or heirs to receive copies or information about the trust administration from the trustee.

F. Conflicts of Interest:

The primary duty of every trustee is to administer the trust solely in the interest of the trust beneficiaries. (This means according to the distribution and asset management that is provided in the trust for the beneficiaries.)

Although a trustee can also be a beneficiary of the same trust, doing so may occasionally create a potential conflict of interest with respect to the rights or management of assets for other trust beneficiaries.

If the trustee has any other financial dealings with the trust such as landlord, creditor, etc., such may also create a potential conflict of interest.

All self-dealings of every nature by the trustee with the trust are prohibited! (This is true even though the transaction causes no actual loss or damage to the trust.)

If the trustee already had an existing relationship business-wise or was a creditor of the trust before becoming trustee, such may continue (though it may create a potential conflict of interest in the administration of trustee duties).

Once the trustee assumes that position, however, no new transactions of any kind that would benefit the trustee personally or for profit are allowed. Thus, the trustee can not even use assets of the trust for personal benefit or enter into new transactions with the trust of any nature that would be beneficial to the trustee.

The trustee may, of course, use the trust assets in the course of carrying out the trustee’s duties and administration of the trust.

This prohibition may also extend to family members or business associates of the trustee.

Sometimes, however, such self-dealing transactions are allowed by language in the trust and if so, may be allowed if the conditions of the trust are fulfilled.

Transactions between the trustee and the trust can also be undertaken if informed consent is contained from all beneficiaries or is approved by the court.

Every trustee is also prohibited from engaging in a business that is in competition with any business of the trust.

This material represents general legal information the administration of a revocable living trust after the death of the settlor. Since the Florida law of trusts is continually changing, some provisions may be out of date. It is always best to consult an experienced Florida probate or trust lawyer or attorney about your legal rights and responsibilities regarding your particular case.  Please call us toll free at 866-510-9099.

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